Republic of the Philippines filed his certificate of candidacy.
" The immediately succeeding proviso in the same third
SUPREME COURT
Manila
EN BANC
G.R. No. 181613 November 25, 2009
ROSALINDA A. PENERA, Petitioner,
vs.
COMMISSION ON ELECTIONS and EDGAR T. ANDANAR, Respondents.
RESOLUTION
CARPIO, J.:
We grant Rosalinda A. Penera’s (Penera) motion for reconsideration of this Court’s Decision
of 11 September 2009 (Decision).
The assailed Decision dismissed Penera’s petition and affirmed the Resolution dated 30 July
2008 of the COMELEC En Banc as well as the Resolution dated 24 July 2007 of the
COMELEC Second Division. The Decision disqualified Penera from running for the office of
Mayor in Sta. Monica, Surigao del Norte and declared that the Vice-Mayor should succeed
Penera.
In support of her motion for reconsideration, Penera submits the following arguments:
1. Penera was not yet a candidate at the time of the incident under Section 11 of RA
8436 as amended by Section 13 of RA 9369.
2. The petition for disqualification failed to submit convincing and substantial
evidence against Penera for violation of Section 80 of the Omnibus Election Code.
3. Penera never admitted the allegations of the petition for disqualification and has
consistently disputed the charge of premature campaigning.
4. The admission that Penera participated in a motorcade is not the same as
admitting she engaged in premature election campaigning.
Section 79(a) of the Omnibus Election Code defines a "candidate" as "any person aspiring for
or seeking an elective public office, who has filed a certificate of candidacy x x x." The second
sentence, third paragraph, Section 15 of RA 8436, as amended by Section 13 of RA 9369,
provides that "[a]ny person who files his certificate of candidacy within [the period for
filing] shall only be considered as a candidate at the start of the campaign period for which he
paragraph states that "unlawful acts or omissions applicable to a candidate shall take effect
only upon the start of the aforesaid campaign period." These two provisions determine the
resolution of this case.
The Decision states that "[w]hen the campaign period starts and [the person who filed his
certificate of candidacy] proceeds with his/her candidacy, his/her intent turning into actuality,
we can already consider his/her acts, after the filing of his/her COC and prior to the campaign
period, as the promotion of his/her election as a candidate, hence, constituting premature
campaigning, for which he/she may be disqualified."1
Under the Decision, a candidate may already be liable for premature campaigning after the
filing of the certificate of candidacy but even before the start of the campaign period. From the
filing of the certificate of candidacy, even long before the start of the campaign period, the
Decision considers the partisan political acts of a person so filing a certificate of candidacy "as
the promotion of his/her election as a candidate." Thus, such person can be disqualified for
premature campaigning for acts done before the start of the campaign period. In short, the
Decision considers a person who files a certificate of candidacy already a "candidate" even
before the start of the campaign period. lawphil
The assailed Decision is contrary to the clear intent and letter of the law.
The Decision reverses Lanot v. COMELEC,2 which held that a person who files a certificate
of candidacy is not a candidate until the start of the campaign period. In Lanot, this
Court explained:
Thus, the essential elements for violation of Section 80 of the Omnibus Election Code are: (1)
a person engages in an election campaign or partisan political activity; (2) the act is designed
to promote the election or defeat of a particular candidate or candidates; (3) the act is done
outside the campaign period.
The second element requires the existence of a "candidate." Under Section 79(a), a candidate
is one who "has filed a certificate of candidacy" to an elective public office. Unless one has
filed his certificate of candidacy, he is not a "candidate." The third element requires that the
campaign period has not started when the election campaign or partisan political activity is
committed.
Assuming that all candidates to a public office file their certificates of candidacy on the last
day, which under Section 75 of the Omnibus Election Code is the day before the start of the
campaign period, then no one can be prosecuted for violation of Section 80 for acts done prior
to such last day. Before such last day, there is no "particular candidate or candidates" to
campaign for or against. On the day immediately after the last day of filing, the campaign
period starts and Section 80 ceases to apply since Section 80 covers only acts done "outside"
the campaign period.
Thus, if all candidates file their certificates of candidacy on the last day, Section 80 may only
apply to acts done on such last day, which is before the start of the campaign period and after
at least one candidate has filed his certificate of candidacy. This is perhaps the reason why
those running for elective public office usually file their certificates of candidacy on the last day
or close to the last day.
There is no dispute that Eusebio’s acts of election campaigning or partisan political activities
were committed outside of the campaign period. The only question is whether Eusebio, who
filed his certificate of candidacy on 29 December 2003, was a "candidate" when he committed
those acts before the start of the campaign period on 24 March 2004.
Section 11 of Republic Act No. 8436 ("RA 8436") moved the deadline for the filing of
certificates of candidacy to 120 days before election day. Thus, the original deadline was
moved from 23 March 2004 to 2 January 2004, or 81 days earlier. The crucial question is: did
this change in the deadline for filing the certificate of candidacy make one who filed his
certificate of candidacy before 2 January 2004 immediately liable for violation of Section 80 if
he engaged in election campaign or partisan political activities prior to the start of the
campaign period on 24 March 2004?
Section 11 of RA 8436 provides:
SECTION 11. Official Ballot. – The Commission shall prescribe the size and form of the official
ballot which shall contain the titles of the positions to be filled and/or the propositions to be
voted upon in an initiative, referendum or plebiscite. Under each position, the names of
candidates shall be arranged alphabetically by surname and uniformly printed using the same
type size. A fixed space where the chairman of the Board of Election Inspectors shall affix
his/her signature to authenticate the official ballot shall be provided.
Both sides of the ballots may be used when necessary.
For this purpose, the deadline for the filing of certificate of candidacy/petition for registration/
manifestation to participate in the election shall not be later than one hundred twenty (120)
days before the elections: Provided, That, any elective official, whether national or local,
running for any office other than the one which he/she is holding in a permanent capacity,
except for president and vice-president, shall be deemed resigned only upon the start of the
campaign period corresponding to the position for which he/she is running: Provided, further,
That, unlawful acts or omissions applicable to a candidate shall take effect upon the start of
the aforesaid campaign period: Provided, finally, That, for purposes of the May 11, 1998
elections, the deadline for filing of the certificate of candidacy for the positions of President,
Vice-President, Senators and candidates under the party-list system as well as petitions for
registration and/or manifestation to participate in the party-list system shall be on February 9,
1998 while the deadline for the filing of certificate of candidacy for other positions shall be on
March 27, 1998.
The official ballots shall be printed by the National Printing Office and/or the Bangko Sentral
ng Pilipinas at the price comparable with that of private printers under proper security
measures which the Commission shall adopt. The Commission may contract the services of
private printers upon certification by the National Printing Office/Bangko Sentral ng Pilipinas
that it cannot meet the printing requirements. Accredited political parties and deputized
citizens’ arms of the Commission may assign watchers in the printing, storage and distribution
of official ballots.
To prevent the use of fake ballots, the Commission through the Committee shall ensure that
the serial number on the ballot stub shall be printed in magnetic ink that shall be easily
detectable by inexpensive hardware and shall be impossible to reproduce on a photocopying
machine, and that identification marks, magnetic strips, bar codes and other technical and
security markings, are provided on the ballot.
The official ballots shall be printed and distributed to each city/municipality at the rate of one
(1) ballot for every registered voter with a provision of additional four (4) ballots per precinct.
Under Section 11 of RA 8436, the only purpose for the early filing of certificates of candidacy
is to give ample time for the printing of official ballots. This is clear from the following
deliberations of the Bicameral Conference Committee:
SENATOR GONZALES. Okay. Then, how about the campaign period, would it be the same[,]
uniform for local and national officials?
THE CHAIRMAN (REP. TANJUATCO). Personally, I would agree to retaining it at the present
periods.
SENATOR GONZALES. But the moment one files a certificate of candidacy, he’s already a
candidate, and there are many prohibited acts on the part of candidate.
THE CHAIRMAN (REP. TANJUATCO). Unless we. . . .
SENATOR GONZALES. And you cannot say that the campaign period has not yet began
(sic).
THE CHAIRMAN (REP. TANJUATCO). If we don’t provide that the filing of the certificate will
not bring about one’s being a candidate.
SENATOR GONZALES. If that’s a fact, the law cannot change a fact.
THE CHAIRMAN (REP. TANJUATCO). No, but if we can provide that the filing of the
certificate of candidacy will not result in that official vacating his position, we can also provide
that insofar he is concerned, election period or his being a candidate will not yet commence.
Because here, the reason why we are doing an early filing is to afford enough time to prepare
this machine readable ballots.
So, with the manifestations from the Commission on Elections, Mr. Chairman, the House
Panel will withdraw its proposal and will agree to the 120-day period provided in the Senate
version.
THE CHAIRMAN (SENATOR FERNAN). Thank you, Mr. Chairman.
xxxx
SENATOR GONZALES. How about prohibition against campaigning or doing partisan acts
which apply immediately upon being a candidate?
THE CHAIRMAN (REP. TANJUATCO). Again, since the intention of this provision is just to
afford the Comelec enough time to print the ballots, this provision does not intend to change
the campaign periods as presently, or rather election periods as presently fixed by existing
law.
THE ACTING CHAIRMAN (SEN. FERNAN). So, it should be subject to the other prohibition.
THE CHAIRMAN (REP. TANJUATCO). That’s right.
THE ACTING CHAIRMAN (SEN. FERNAN). Okay.
THE CHAIRMAN (REP. TANJUATCO). In other words, actually, there would be no conflict
anymore because we are talking about the 120-day period before election as the last day of
filing a certificate of candidacy, election period starts 120 days also. So that is election period
already. But he will still not be considered as a candidate.
Thus, because of the early deadline of 2 January 2004 for purposes of printing of official
ballots, Eusebio filed his certificate of candidacy on 29 December 2003. Congress, however,
never intended the filing of a certificate of candidacy before 2 January 2004 to make the
person filing to become immediately a "candidate" for purposes other than the printing of
ballots. This legislative intent prevents the immediate application of Section 80 of the Omnibus
Election Code to those filing to meet the early deadline. The clear intention of Congress was
to preserve the "election periods as x x x fixed by existing law" prior to RA 8436 and that one
who files to meet the early deadline "will still not be considered as a candidate."3 (Emphasis in
the original)
Lanot was decided on the ground that one who files a certificate of candidacy is not a
candidate until the start of the campaign period. This ground was based on the deliberations
of the legislators who explained the intent of the provisions of RA 8436, which laid the legal
framework for an automated election system. There was no express provision in the original
RA 8436 stating that one who files a certificate of candidacy is not a candidate until the start of
the campaign period.
When Congress amended RA 8436, Congress decided to expressly incorporate the Lanot
doctrine into law, realizing that Lanot merely relied on the deliberations of Congress in holding
that —
The clear intention of Congress was to preserve the "election periods as x x x fixed by existing
law" prior to RA 8436 and that one who files to meet the early deadline "will still not be
considered as a candidate."4 (Emphasis supplied)
Congress wanted to insure that no person filing a certificate of candidacy under the early
deadline required by the automated election system would be disqualified or penalized for any
partisan political act done before the start of the campaign period. Thus, in enacting RA 9369,
Congress expressly wrote the Lanot doctrine into the second sentence, third paragraph of the
amended Section 15 of RA 8436, thus:
xxx
For this purpose, the Commission shall set the deadline for the filing of certificate of
candidacy/petition for registration/manifestation to participate in the election. Any person who
files his certificate of candidacy within this period shall only be considered as a candidate at
the start of the campaign period for which he filed his certificate of candidacy: Provided, That,
unlawful acts or omissions applicable to a candidate shall take effect only upon the start of the
aforesaid campaign period: Provided, finally, That any person holding a public appointive
office or position, including active members of the armed forces, and officers and employees
in government-owned or -controlled corporations, shall be considered ipso facto resigned from
his/her office and must vacate the same at the start of the day of the filing of his/her certificate
of candidacy. (Boldfacing and underlining supplied)
Congress elevated the Lanot doctrine into a statute by specifically inserting it as the second
sentence of the third paragraph of the amended Section 15 of RA 8436, which cannot be
annulled by this Court except on the sole ground of its unconstitutionality. The Decision
cannot reverse Lanot without repealing this second sentence, because to reverse Lanot would
mean repealing this second sentence.
The assailed Decision, however, in reversing Lanot does not claim that this second sentence
or any portion of Section 15 of RA 8436, as amended by RA 9369, is unconstitutional. In fact,
the Decision considers the entire Section 15 good law. Thus, the Decision is self-contradictory
— reversing Lanot but maintaining the constitutionality of the second sentence, which
embodies the Lanot doctrine. In so doing, the Decision is irreconcilably in conflict with the
clear intent and letter of the second sentence, third paragraph, Section 15 of RA 8436, as
amended by RA 9369.
In enacting RA 9369, Congress even further clarified the first proviso in the third paragraph of
Section 15 of RA 8436. The original provision in RA 8436 states —
x x x Provided, further, That, unlawful acts or omissions applicable to a candidate shall take
effect upon the start of the aforesaid campaign period, x x x.
In RA 9369, Congress inserted the word "only" so that the first proviso now reads —
x x x Provided, That, unlawful acts or omissions applicable to a candidate shall take effect
only upon the start of the aforesaid campaign period x x x. (Emphasis supplied)
Thus, Congress not only reiterated but also strengthened its mandatory directive that election
offenses can be committed by a candidate "only" upon the start of the campaign period. This
clearly means that before the start of the campaign period, such election offenses cannot be
so committed.
When the applicable provisions of RA 8436, as amended by RA 9369, are read together,
these provisions of law do not consider Penera a candidate for purposes other than the
printing of ballots, until the start of the campaign period. There is absolutely no room for any
other interpretation.
We quote with approval the Dissenting Opinion of Justice Antonio T. Carpio:
x x x The definition of a "candidate" in Section 79(a) of the Omnibus Election Code should be
read together with the amended Section 15 of RA 8436. A "‘candidate’ refers to any person
aspiring for or seeking an elective public office, who has filed a certificate of candidacy by
himself or through an accredited political party, aggroupment or coalition of parties." However,
it is no longer enough to merely file a certificate of candidacy for a person to be considered a
candidate because "any person who files his certificate of candidacy within [the filing] period
shall only be considered a candidate at the start of the campaign period for which he filed his
certificate of candidacy." Any person may thus file a certificate of candidacy on any day within
the prescribed period for filing a certificate of candidacy yet that person shall be considered a
candidate, for purposes of determining one’s possible violations of election laws, only during
the campaign period. Indeed, there is no "election campaign" or "partisan political activity"
designed to promote the election or defeat of a particular candidate or candidates to public
office simply because there is no "candidate" to speak of prior to the start of the campaign
period. Therefore, despite the filing of her certificate of candidacy, the law does not consider
Penera a candidate at the time of the questioned motorcade which was conducted a day
before the start of the campaign period. x x x
The campaign period for local officials began on 30 March 2007 and ended on 12 May 2007.
Penera filed her certificate of candidacy on 29 March 2007. Penera was thus a candidate on
29 March 2009 only for purposes of printing the ballots. On 29 March 2007, the law still did not
consider Penera a candidate for purposes other than the printing of ballots. Acts committed by
Penera prior to 30 March 2007, the date when she became a "candidate," even if constituting
election campaigning or partisan political activities, are not punishable under Section 80 of the
Omnibus Election Code. Such acts are within the realm of a citizen’s protected freedom of
expression. Acts committed by Penera within the campaign period are not covered by Section
80 as Section 80 punishes only acts outside the campaign period.5
The assailed Decision gives a specious reason in explaining away the first proviso in the third
paragraph, the amended Section 15 of RA 8436 that election offenses applicable to
candidates take effect only upon the start of the campaign period. The Decision states that:
x x x [T]he line in Section 15 of Republic Act No. 8436, as amended, which provides that "any
unlawful act or omission applicable to a candidate shall take effect only upon the start of the
campaign period," does not mean that the acts constituting premature campaigning can only
be committed, for which the offender may be disqualified, during the campaign period.
Contrary to the pronouncement in the dissent, nowhere in said proviso was it stated that
campaigning before the start of the campaign period is lawful, such that the offender may
freely carry out the same with impunity.
As previously established, a person, after filing his/her COC but prior to his/her becoming a
candidate (thus, prior to the start of the campaign period), can already commit the acts
described under Section 79(b) of the Omnibus Election Code as election campaign or partisan
political activity, However, only after said person officially becomes a candidate, at the
beginning of the campaign period, can said acts be given effect as premature campaigning
under Section 80 of the Omnibus Election Code. Only after said person officially becomes a
candidate, at the start of the campaign period, can his/her disqualification be sought for acts
constituting premature campaigning. Obviously, it is only at the start of the campaign period,
when the person officially becomes a candidate, that the undue and iniquitous advantages of
his/her prior acts, constituting premature campaigning, shall accrue to his/her benefit.
Compared to the other candidates who are only about to begin their election campaign, a
candidate who had previously engaged in premature campaigning already enjoys an unfair
headstart in promoting his/her candidacy.6(Emphasis supplied)
It is a basic principle of law that any act is lawful unless expressly declared unlawful by law.
This is specially true to expression or speech, which Congress cannot outlaw except on very
narrow grounds involving clear, present and imminent danger to the State. The mere fact that
the law does not declare an act unlawful ipso facto means that the act is lawful. Thus, there is
no need for Congress to declare in Section 15 of RA 8436, as amended by RA 9369, that
political partisan activities before the start of the campaign period are lawful. It is sufficient for
Congress to state that "any unlawful act or omission applicable to a candidate shall take effect
only upon the start of the campaign period." The only inescapable and logical result is that the
same acts, if done before the start of the campaign period, are lawful.
In layman’s language, this means that a candidate is liable for an election offense only for acts
done during the campaign period, not before. The law is clear as daylight — any election
offense that may be committed by a candidate under any election law cannot be committed
before the start of the campaign period. In ruling that Penera is liable for premature
campaigning for partisan political acts before the start of the campaigning, the assailed
Decision ignores the clear and express provision of the law.

The Decision rationalizes that a candidate who commits premature campaigning can be
disqualified or prosecuted only after the start of the campaign period. This is not what the law
says. What the law says is "any unlawful act or omission applicable to a candidate shall take
effect only upon the start of the campaign period." The plain meaning of this provision is that
the effective date when partisan political acts become unlawful as to a candidate is when the
campaign period starts. Before the start of the campaign period, the same partisan political
acts are lawful.

The law does not state, as the assailed Decision asserts, that partisan political acts done by a
candidate before the campaign period are unlawful, but may be prosecuted only upon the start
of the campaign period. Neither does the law state that partisan political acts done by a
candidate before the campaign period are temporarily lawful, but becomes unlawful upon the
start of the campaign period. This is clearly not the language of the law. Besides, such a law
as envisioned in the Decision, which defines a criminal act and curtails freedom of expression
and speech, would be void for vagueness.

Congress has laid down the law — a candidate is liable for election offenses only upon the
start of the campaign period. This Court has no power to ignore the clear and express
mandate of the law that "any person who files his certificate of candidacy within [the filing]
period shall only be considered a candidate at the start of the campaign period for which he
filed his certificate of candidacy." Neither can this Court turn a blind eye to the express and
clear language of the law that "any unlawful act or omission applicable to a candidate shall
take effect only upon the start of the campaign period."

The forum for examining the wisdom of the law, and enacting remedial measures, is not this
Court but the Legislature. This Court has no recourse but to apply a law that is as clear,
concise and express as the second sentence, and its immediately succeeding proviso, as
written in the third paragraph of Section 15 of RA 8436, as amended by RA 9369.

WHEREFORE, we GRANT petitioner Rosalinda A. Penera’s Motion for Reconsideration. We

SET ASIDE the Decision of this Court in G.R. No. 181613 promulgated on 11 September
2009, as well as the Resolutions dated 24 July 2007 and 30 January 2008 of the COMELEC
Second Division and the COMELEC En Banc, respectively, in SPA No. 07-224. Rosalinda A.
Penera shall continue as Mayor of Sta. Monica, Surigao del Norte.

SO ORDERED.

ANTONIO T. CARPIO
Associate Justice
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 189698 December 1, 2009
ELEAZAR P. QUINTO and GERINO A. TOLENTINO, JR., Petitioners,
vs.
COMMISSION ON ELECTIONS, Respondent.
DECISION
NACHURA, J.:
In our predisposition to discover the "original intent" of a statute, courts become the unfeeling
pillars of the status quo. Little do we realize that statutes or even constitutions are bundles of
compromises thrown our way by their framers. Unless we exercise vigilance, the statute may
already be out of tune and irrelevant to our day.1 It is in this light that we should address the
instant case.
Before the Court is a petition for prohibition and certiorari, with prayer for the issuance of a
temporary restraining order and a writ of preliminary injunction, assailing Section 4(a) of
Resolution No. 8678 of the Commission on Elections (COMELEC). In view of pressing
contemporary events, the petition begs for immediate resolution.
The Antecedents
This controversy actually stems from the law authorizing the COMELEC to use an automated
election system (AES).
On December 22, 1997, Congress enacted Republic Act (R.A.) No. 8436, entitled "AN ACT
AUTHORIZING THE COMMISSION ON ELECTIONS TO USE AN AUTOMATED ELECTION
SYSTEM IN THE MAY 11, 1998 NATIONAL OR LOCAL ELECTIONS AND IN SUBSEQUENT
NATIONAL AND LOCAL ELECTORAL EXERCISES, PROVIDING FUNDS THEREFOR AND
FOR OTHER PURPOSES." Section 11 thereof reads:
SEC. 11. Official Ballot.- The Commission shall prescribe the size and form of the official
ballot which shall contain the titles of the positions to be filled and/or the propositions to be
voted upon in an initiative, referendum or plebiscite. Under each position, the names of
candidates shall be arranged alphabetically by surname and uniformly printed using the same
type size. A fixed space where the chairman of the Board of Election inspectors shall affix
his/her signature to authenticate the official ballot shall be provided.
Both sides of the ballots may be used when necessary.
For this purpose, the deadline for the filing of certificate of candidacy/petition for
registration/manifestation to participate in the election shall not be later than one hundred
twenty (120) days before the elections: - Provided, That, any elective official, whether national
or local, running for any office other than the one which he/she is holding in a permanent
capacity, except for president and vice president, shall be deemed resigned only upon the
start of the campaign period corresponding to the position for which he/she is running:
Provided, further, That, unlawful acts or omissions applicable to a candidate shall take effect
upon the start of the aforesaid campaign period: Provided, finally, That, for purposes of the
May 11, 1998 elections, the deadline for filing of the certificate of candidacy for the positions
of President, Vice President, Senators and candidates under the Party-List System as well as
petitions for registration and/or manifestation to participate in the Party-List System shall be on
February 9, 1998 while the deadline for the filing of certificate of candidacy for other positions
shall be on March 27, 1998.
The official ballots shall be printed by the National Printing Office and/or the Bangko Sentral
ng Pilipinas at the price comparable with that of private printers under proper security
measures which the Commission shall adopt. The Commission may contract the services of
private printers upon certification by the National Printing Office/Bangko Sentral ng Pilipinas
that it cannot meet the printing requirements. Accredited political parties and deputized
citizens' arms of the Commission may assign watchers in the printing, storage and distribution
of official ballots.
To prevent the use of fake ballots, the Commission through the Committee shall ensure that
the serial number on the ballot stub shall be printed in magnetic ink that shall be easily
detectable by inexpensive hardware and shall be impossible to reproduce on a photocopying
machine and that identification marks, magnetic strips, bar codes and other technical and
security markings, are provided on the ballot.
The official ballots shall be printed and distributed to each city/municipality at the rate of one
(1) ballot for every registered voter with a provision of additional four (4) ballots per precinct. 2
Almost a decade thereafter, Congress amended the law on January 23, 2007 by enacting
R.A. No. 9369, entitled "AN ACT AMENDING REPUBLIC ACT NO. 8436, ENTITLED "AN
ACT AUTHORIZING THE COMMISSION ON ELECTIONS TO USE AN AUTOMATED
ELECTION SYSTEM IN THE MAY 11, 1998 NATIONAL OR LOCAL ELECTIONS AND IN
SUBSEQUENT NATIONAL AND LOCAL ELECTORAL EXERCISES, TO ENCOURAGE
TRANSPARENCY, CREDIBILITY, FAIRNESS AND ACCURACY OF ELECTIONS,
AMENDING FOR THE PURPOSE BATAS PAMPANSA BLG. 881, AS AMEMDED,
REPUBLIC ACT NO. 7166 AND OTHER RELATED ELECTION LAWS, PROVIDING FUNDS
THEREFOR AND FOR OTHER PURPOSES." Section 13 of the amendatory law modified
Section 11 of R.A. No. 8436, thus:
SEC. 13. Section 11 of Republic Act No. 8436 is hereby amended to read as follows:
Section 15. Official Ballot.- The Commission shall prescribe the format of the electronic
display and/or the size and form of the official ballot, which shall contain the titles of the
position to be filled and/or the propositions to be voted upon in an initiative, referendum or
plebiscite. Where practicable, electronic displays must be constructed to present the names of
all candidates for the same position in the same page or screen, otherwise, the electronic
displays must be constructed to present the entire ballot to the voter, in a series of sequential
pages, and to ensure that the voter sees all of the ballot options on all pages before
completing his or her vote and to allow the voter to review and change all ballot choices prior
to completing and casting his or her ballot. Under each position to be filled, the names of
candidates shall be arranged alphabetically by surname and uniformly indicated using the
same type size. The maiden or married name shall be listed in the official ballot, as preferred
by the female candidate. Under each proposition to be vote upon, the choices should be
uniformly indicated using the same font and size.
A fixed space where the chairman of the board of election inspectors shall affix his/her
signature to authenticate the official ballot shall be provided.
Pursuant to its constitutional mandate to enforce and administer election laws, COMELEC
issued Resolution No. 8678,4 the Guidelines on the Filing of Certificates of Candidacy (CoC)
and Nomination of Official Candidates of Registered Political Parties in Connection with the
May 10, 2010 National and Local Elections. Sections 4 and 5 of Resolution No. 8678 provide:
SEC. 4. Effects of Filing Certificates of Candidacy.- a) Any person holding a public appointive
office or position including active members of the Armed Forces of the Philippines, and other
officers and employees in government-owned or controlled corporations, shall be considered
ipso facto resigned from his office upon the filing of his certificate of candidacy.
b) Any person holding an elective office or position shall not be considered resigned upon the
filing of his certificate of candidacy for the same or any other elective office or position.
SEC. 5. Period for filing Certificate of Candidacy.- The certificate of candidacy shall be filed on
regular days, from November 20 to 30, 2009, during office hours, except on the last day,
which shall be until midnight.

For this purpose, the Commission shall set the deadline for the filing of certificate of
Alarmed that they will be deemed ipso facto resigned from their offices the moment they file
candidacy/petition of registration/manifestation to participate in the election. Any person who
their CoCs, petitioners Eleazar P. Quinto and Gerino A. Tolentino, Jr., who hold appointive
files his certificate of candidacy within this period shall only be considered as a candidate at
positions in the government and who intend to run in the coming elections,5 filed the instant
the start of the campaign period for which he filed his certificate of candidacy: Provided, That,
petition for prohibition and certiorari, seeking the declaration of the afore-quoted Section 4(a)
unlawful acts or omissions applicable to a candidate shall take effect only upon the start of the
of Resolution No. 8678 as null and void.
aforesaid campaign period: Provided, finally, That any person holding a public appointive
office or position, including active members of the armed forces, and officers and employees
in government-owned or -controlled corporations, shall be considered ipso facto resigned from The Petitioners' Contention
his/her office and must vacate the same at the start of the day of the filing of his/her certificate
of candidacy. Petitioners contend that the COMELEC gravely abused its discretion when it issued the
assailed Resolution. They aver that the advance filing of CoCs for the 2010 elections is
Political parties may hold political conventions to nominate their official candidates within thirty intended merely for the purpose of early printing of the official ballots in order to cope with
(30) days before the start of the period for filing a certificate of candidacy. time limitations. Such advance filing does not automatically make the person who filed the
CoC a candidate at the moment of filing. In fact, the law considers him a candidate only at the
start of the campaign period. Petitioners then assert that this being so, they should not be
With respect to a paper-based election system, the official ballots shall be printed by the
deemed ipso facto resigned from their government offices when they file their CoCs, because
National Printing Office and/or the Bangko Sentral ng Pilipinas at the price comparable with
at such time they are not yet treated by law as candidates. They should be considered
that of private printers under proper security measures which the Commission shall adopt.
resigned from their respective offices only at the start of the campaign period when they are,
The Commission may contract the services of private printers upon certification by the
by law, already considered as candidates.6
National Printing Office/Bangko Sentral ng Pilipinas that it cannot meet the printing
requirements. Accredited political parties and deputized citizens' arms of the Commission
shall assign watchers in the printing, storage and distribution of official ballots. Petitioners also contend that Section 13 of R.A. No. 9369, the basis of the assailed
COMELEC resolution, contains two conflicting provisions. These must be harmonized or
reconciled to give effect to both and to arrive at a declaration that they are not ipso facto
To prevent the use of fake ballots, the Commission through the Committee shall ensure that
resigned from their positions upon the filing of their CoCs.7
the necessary safeguards, such as, but not limited to, bar codes, holograms, color shifting ink,
microprinting, are provided on the ballot.
Petitioners further posit that the provision considering them as ipso facto resigned from office
upon the filing of their CoCs is discriminatory and violates the equal protection clause in the
The official ballots shall be printed and distributed to each city/municipality at the rate of one
Constitution.8
ballot for every registered voter with a provision of additional three ballots per precinct.3
 The Respondent's Arguments
On the procedural aspect of the petition, the Office of the Solicitor General (OSG),
representing respondent COMELEC, argues that petitioners have no legal standing to institute
the suit." Petitioners have not yet filed their CoCs, hence, they are not yet affected by the
assailed provision in the COMELEC resolution. The OSG further claims that the petition is
premature or unripe for judicial determination." Petitioners have admitted that they are merely
planning to file their CoCs for the coming 2010 elections. Their interest in the present
controversy is thus merely speculative and contingent upon the filing of the same. The OSG
likewise contends that petitioners availed of the wrong remedy. They are questioning an
issuance of the COMELEC made in the exercise of the latter's rule-making power. Certiorari
under Rule 65 is then an improper remedy.9
On the substantive aspect, the OSG maintains that the COMELEC did not gravely abuse its
discretion in phrasing Section 4(a) of Resolution No. 8678 for it merely copied what is in the
law. The OSG, however, agrees with petitioners that there is a conflict in Section 13 of R.A.
No. 9369 that should be resolved. According to the OSG, there seems to be no basis to
consider appointive officials as ipso facto resigned and to require them to vacate their
positions on the same day that they file their CoCs, because they are not yet considered as
candidates at that time. Further, this - deemed resigned- provision existed in Batas Pambansa
Bilang (B.P. Blg.) 881, and no longer finds a place in our present election laws with the
innovations brought about by the automated system.10
Our Ruling
I.
At first glance, the petition suffers from an incipient procedural defect. What petitioners assail
in their petition is a resolution issued by the COMELEC in the exercise of its quasi-legislative
power. Certiorari under Rule 65, in relation to Rule 64, cannot be availed of, because it is a
remedy to question decisions, resolutions and issuances made in the exercise of a judicial or
quasi-judicial function.11 Prohibition is also an inappropriate remedy, because what petitioners
actually seek from the Court is a determination of the proper construction of a statute and a
declaration of their rights thereunder. Obviously, their petition is one for declaratory
relief,12 over which this Court does not exercise original jurisdiction. 13
However, petitioners raise a challenge on the constitutionality of the questioned provisions of
both the COMELEC resolution and the law. Given this scenario, the Court may step in and
resolve the instant petition.
The transcendental nature and paramount importance of the issues raised and the compelling
state interest involved in their early resolution the period for the filing of CoCs for the 2010
elections has already started and hundreds of civil servants intending to run for elective offices
are to lose their employment, thereby causing imminent and irreparable damage to their
means of livelihood and, at the same time, crippling the government's manpowerfurther
dictate that the Court must, for propriety, if only from a sense of obligation, entertain the
petition so as to expedite the adjudication of all, especially the constitutional, issues.
In any event, the Court has ample authority to set aside errors of practice or technicalities of
procedure and resolve the merits of a case. Repeatedly stressed in our prior decisions is the
principle that the Rules were promulgated to provide guidelines for the orderly administration
of justice, not to shackle the hand that dispenses it. Otherwise, the courts would be consigned
to being mere slaves to technical rules, deprived of their judicial discretion.14
II.
To put things in their proper perspective, it is imperative that we trace the brief history of the
assailed provision. Section 4(a) of COMELEC Resolution No. 8678 is a reproduction of the
second proviso in the third paragraph of Section 13 of R.A. No. 9369, which for ready
reference is quoted as follows:
For this purpose, the Commission shall set the deadline for the filing of certificate of
candidacy/petition for registration/manifestation to participate in the election. Any person who
files his certificate of candidacy within this period shall only be considered as a candidate at
the start of the campaign period for which he filed his certificate of candidacy: Provided, That,
unlawful acts or omissions applicable to a candidate shall take effect only upon the start of the
aforesaid campaign period: Provided, finally, That any person holding a public appointive
office or position, including active members of the armed forces, and officers and employees
in government-owned or -controlled corporations, shall be considered ipso facto resigned from
his/her office and must vacate the same at the start of the day of the filing of his/her certificate
of candidacy.15
Notably, this proviso is not present in Section 11 of R.A. No. 8436, the law amended by R.A.
No. 9369. The proviso was lifted from Section 66 of B.P. Blg. 881 or the Omnibus Election
Code (OEC) of the Philippines, which reads:
Sec. 66. Candidates holding appointive office or position.- Any person holding a public
appointive office or position, including active members of the Armed Forces of the Philippines,
and officers and employees in government-owned or controlled corporations, shall be
considered ipso facto resigned from his office upon the filing of his certificate of candidacy.
It may be recalled-in inverse chronology-that earlier, Presidential Decree No. 1296, or the
1978 Election Code, contained a similar provision, thus'
SECTION 29. Candidates holding appointive office or position. - Every person holding a public
appointive office or position, including active members of the Armed Forces of the Philippines,
and officers and employees in government-owned or controlled corporations, shall ipso facto
cease in his office or position on the date he files his certificate of candidacy. Members of the
Cabinet shall continue in the offices they presently hold notwithstanding the filing of certificate
of candidacy, subject to the pleasure of the President of the Philippines.
Much earlier, R.A. No. 6388, or the Election Code of 1971, likewise stated in its Section 23 the
following:
SECTION 23. Candidates Holding Appointive Office or Position. - Every person holding a
public appointive office or position, including active members of the Armed Forces of the
Philippines and every officer or employee in government-owned or controlled corporations,
shall ipso facto cease in his office or position on the date he files his certificate of candidacy:
Provided, That the filing of a certificate of candidacy shall not affect whatever civil, criminal or
administrative liabilities which he may have incurred.
Going further back in history, R.A. No. 180, or the Revised Election Code approved on June
21, 1947, also provided that
SECTION 26. Automatic cessation of appointive officers and employees who are candidates. -
Every person holding a public appointive office or position shall ipso facto cease in his office
or position on the date he files his certificate of candidacy.
During the Commonwealth era, Commonwealth Act (C.A.) No. 725, entitled "AN ACT TO
PROVIDE FOR THE NEXT ELECTION FOR PRESIDENT AND VICE-PRESIDENT OF THE
PHILIPPINES, SENATORS AND MEMBERS OF THE HOUSE OF REPRESENTATIVES,
AND APPROPRIATING THE NECESSARY FUNDS THEREFOR," approved on January 5,
1946, contained, in the last paragraph of its Section 2, the following:
A person occupying any civil office by appointment in the government or any of its political
subdivisions or agencies or government-owned or controlled corporations, whether such office
by appointive or elective, shall be considered to have resigned from such office from the
moment of the filing of such certificate of candidacy.
Significantly, however, C.A. No. 666, entitled "AN ACT TO PROVIDE FOR THE FIRST
ELECTION FOR PRESIDENT AND VICE-PRESIDENT OF THE PHILIPPINES, SENATORS,
AND MEMBERS OF THE HOUSE OF REPRESENTATIVES, UNDER THE CONSTITUTION
AND THE AMENDMENTS THEREOF," enacted without executive approval on June 22, 1941,
the precursor of C.A. No. 725, only provided for automatic resignation of elective, but not
appointive, officials.
Nevertheless, C.A. No. 357, or the Election Code approved on August 22, 1938, had, in its
Section 22, the same verbatim provision as Section 26 of R.A. No. 180.
The earliest recorded Philippine law on the subject is Act No. 1582, or the Election Law
enacted by the Philippine Commission in 1907, the last paragraph of Section 29 of which
reads:
Sec. 29. Penalties upon officers.- x x x.
No public officer shall offer himself as a candidate for election, nor shall he be eligible during
the time that he holds said public office to election, at any municipal, provincial or Assembly
election, except for reelection to the position which he may be holding, and no judge of the
Court of First Instance, justice of the peace, provincial fiscal, or officer or employee of the
Bureau of Constabulary or of the Bureau of Education shall aid any candidate or influence in
any manner or take any part in any municipal, provincial, or Assembly election under penalty
of being deprived of his office and being disqualified to hold any public office whatever for a
term of five years: Provided, however, That the foregoing provisions shall not be construed to
deprive any person otherwise qualified of the right to vote at any election.
From this brief historical excursion, it may be gleaned that the second proviso in the third
paragraph of Section 13 of R.A. No. 9369- that any person holding a public appointive office
or position, including active members of the armed forces, and officers, and employees in
government-owned or controlled corporations, shall be considered ipso facto resigned from
his/her office and must vacate the same at the start of the day of the filing of his/her certificate
of candidacy- traces its roots to the period of the American occupation.
In fact, during the deliberations of Senate Bill No. 2231, the bill later to be consolidated with
House Bill No. 5352 and enacted as R.A. No. 9369, Senator Richard Gordon, the principal
author of the bill, acknowledged that the said proviso in the proposed legislative measure is an
old provision which was merely copied from earlier existing legislation, thus'
Senator Osmeña.- May I just opine here and perhaps obtain the opinion of the good Sponsor.-
This reads like, "ANY PERSON HOLDING [means currently] A PUBLIC APPOINTIVE
POSITION" SHALL BE CONSIDERED IPSO FACTO RESIGNED- [which means that the
prohibition extends only to appointive officials] "INCLUDING ACTIVE MEMBERS OF THE
ARMED FORCES, OFFICERS AND EMPLOYEES"- This is a prohibition, Mr. President.- This
means if one is chairman of SSS or PDIC, he is deemed ipso facto resigned when he files his
certificate of candidacy.- Is that the intention
Senator Gordon.- This is really an old provision, Mr. President.
Senator Osmeña.- It is in bold letters, so I think it was a Committee amendment.
Senator Gordon.- No, it has always been there.
Senator Osmeña.- I see.
Senator Gordon.- I guess the intention is not to give them undue advantage, especially certain
people.
Senator Osmeña.- All right.16
In that Senate deliberation, however, Senator Miriam Defensor-Santiago expressed her
concern over the inclusion of the said provision in the new law, given that the same would be
disadvantageous and unfair to potential candidates holding appointive positions, while it
grants a consequent preferential treatment to elective officials, thus'
Senator Santiago.- On page 15, line 31, I know that this is a losing cause, so I make this point
more as a matter of record than of any feasible hope that it can possibly be either accepted or
if we come to a division of the House, it will be upheld by the majority.
Parenthetically, it may be remembered that Section 67 of the OEC and Section 11 of R.A. No.
8436 contained a similar provision on automatic resignation of elective officials upon the filing
of their CoCs for any office other than that which they hold in a permanent capacity or for
President or Vice-President. However, with the enactment of R.A. No. 9006, or the Fair
Election Act,19 in 2001, this provision was repealed by Section 1420 of the said act. There was,
thus, created a situation of obvious discrimination against appointive officials who were
deemed ipso facto resigned from their offices upon the filing of their CoCs, while elective
officials were not.

I am referring to page 15, line 21.- The proviso begins: "PROVIDED FINALLY, THAT ANY This situation was incidentally addressed by the Court in Fari᳠v. The Executive
PERSON HOLDING A PUBLIC APPOINTIVE OFFICE - SHALL BE CONSIDERED IPSO Secretary21 when it ruled that
FACTO RESIGNED FROM HIS/HER OFFICE."
Section 14 of Rep. Act No. 9006
The point that I made during the appropriate debate in the past in this Hall is that there is, for
me, no valid reason for exempting elective officials from this inhibition or disqualification Is Not Violative of the Equal
imposed by the law.- If we are going to consider appointive officers of the government,
including AFP members and officers of government-owned and controlled corporations, or any Protection Clause of the Constitution
other member of the appointive sector of the civil service, why should it not apply to the
elective sector for, after all, even senators and congressmen are members of the civil service
The petitioners' contention, that the repeal of Section 67 of the Omnibus Election Code
as well
pertaining to elective officials gives undue benefit to such officials as against the appointive
ones and violates the equal protection clause of the constitution, is tenuous.
Further, it is self-serving for the Senate, or for the Congress in general, to give an exception to
itself which is not available to other similarly situated officials of government. Of course, the
The equal protection of the law clause in the Constitution is not absolute, but is subject to
answer is, the reason why we are special is that we are elected. Since we are imposing a
reasonable classification.- If the groupings are characterized by substantial distinctions that
disqualification on all other government officials except ourselves, I think, it is the better part of
make real differences, one class may be treated and regulated differently from the other. The
delicadeza to inhibit ourselves as well, so that if we want to stay as senators, we wait until our
Court has explained the nature of the equal protection guarantee in this manner:
term expires. But if we want to run for some other elective office during our term, then we
have to be considered resigned just like everybody else. That is my proposed amendment.
But if it is unacceptable to the distinguished Sponsor, because of sensitivity to the convictions The equal protection of the law clause is against undue favor and individual or class privilege,
of the rest of our colleagues, I will understand. as well as hostile discrimination or the oppression of inequality.- It is not intended to prohibit
legislation which is limited either in the object to which it is directed or by territory within which
it is to operate.- It does not demand absolute equality among residents; it merely requires that
Senator Gordon. Mr. President, I think the suggestion is well-thought of.- It is a good policy.-
all persons shall be treated alike, under like circumstances and conditions both as to
However, this is something that is already in the old law which was upheld by the Supreme
privileges conferred and liabilities enforced.- The equal protection clause is not infringed by
court in a recent case that the rider was not upheld and that it was valid.17
legislation which applies only to those persons falling within a specified class, if it applies alike
to all persons within such class, and reasonable grounds exist for making a distinction
The obvious inequality brought about by the provision on automatic resignation of appointive between those who fall within such class and those who do not.
civil servants must have been the reason why Senator Recto proposed the inclusion of the
following during the period of amendments: "ANY PERSON WHO FILES HIS CERTIFICATE
Substantial distinctions clearly exist between elective officials and appointive officials. The
OF CANDIDACY WITHIN THIS PERIOD SHALL ONLY BE CONSIDERED AS A CANDIDATE
former occupy their office by virtue of the mandate of the electorate. They are elected to an
AT THE START OF THE CAMPAIGN PERIOD FOR WHICH HE FILED HIS COC."18 The said
office for a definite term and may be removed therefrom only upon stringent conditions. On
proviso seems to mitigate the situation of disadvantage afflicting appointive officials by
the other hand, appointive officials hold their office by virtue of their designation thereto by an
considering persons who filed their CoCs as candidates only at the start of the campaign
appointing authority.- Some appointive officials hold their office in a permanent capacity and
period, thereby, conveying the tacit intent that persons holding appointive positions will only
are entitled to security of tenure while others serve at the pleasure of the appointing authority.
be considered as resigned at the start of the campaign period when they are already treated
by law as candidates.
Another substantial distinction between the two sets of officials is that under Section 55,
Chapter 8, Title I, Subsection A. Civil Service Commission, Book V of the Administrative Code
of 1987 (Executive Order No. 292), appointive officials, as officers and employees in the civil
service, are strictly prohibited from engaging in any partisan political activity or take part in any
election except to vote.- Under the same provision, elective officials, or officers or employees
holding political offices, are obviously expressly allowed to take part in political and electoral
activities.
By repealing Section 67 but retaining Section 66 of the Omnibus Election Code, the legislators
deemed it proper to treat these two classes of officials differently with respect to the effect on
their tenure in the office of the filing of the certificates of candidacy for any position other than
those occupied by them.- Again, it is not within the power of the Court to pass upon or look
into the wisdom of this classification.
Since the classification justifying Section 14 of Rep. Act No. 9006, i.e., elected officials vis-a-
vis appointive officials, is anchored upon material and significant distinctions and all the
persons belonging under the same classification are similarly treated, the equal protection
clause of the Constitution is, thus, not infringed.22
However, it must be remembered that the Court, in Fari᳠/i>, was intently focused on the main
issue of whether the repealing clause in the Fair Election Act was a constitutionally proscribed
rider, in that it unwittingly failed to ascertain with stricter scrutiny the impact of the retention of
the provision on automatic resignation of persons holding appointive positions (Section 66) in
the OEC, vis-୶is the equal protection clause.- Moreover, the Court's vision in Fari᳠/i> was
shrouded by the fact that petitioners therein, Fari᳠et al., never posed a direct challenge to the
constitutionality of Section 66 of the OEC. Fari᳠et al. rather merely questioned, on
constitutional grounds, the repealing clause, or Section 14 of the Fair Election Act. The
Court's afore-quoted declaration in Fari᳠/i> may then very well be considered as an obiter
dictum.
III.
The instant case presents a rare opportunity for the Court, in view of the constitutional
challenge advanced by petitioners, once and for all, to settle the issue of whether the second
proviso in the third paragraph of Section 13 of R.A. No. 9369, a reproduction of Section 66 of
the OEC, which, as shown above, was based on provisions dating back to the American
occupation, is violative of the equal protection clause.
But before delving into the constitutional issue, we shall first address the issues on legal
standing and on the existence of an actual controversy.
Central to the determination of locus standi is the question of whether a party has alleged
such a personal stake in the outcome of the controversy as to assure that concrete
adverseness which sharpens the presentation of issues upon which the court so largely
depends for illumination of difficult constitutional questions.23 In this case, petitioners allege
that they will be directly affected by COMELEC Resolution No. 8678 for they intend, and they
all have the qualifications, to run in the 2010 elections. The OSG, for its part, contends that
since petitioners have not yet filed their CoCs, they are not yet candidates; hence, they are
not yet directly affected by the assailed provision in the COMELEC resolution.
The Court, nevertheless, finds that, while petitioners are not yet candidates, they have the
standing to raise the constitutional challenge, simply because they are qualified voters. A
restriction on candidacy, such as the challenged measure herein, affects the rights of voters to
choose their public officials. The rights of voters and the rights of candidates do not lend
themselves to neat separation; laws that affect candidates always have at least some
theoretical, correlative effect on voters.24 The Court believes that both candidates and voters
may challenge, on grounds of equal protection, the assailed measure because of its impact on
voting rights.25
In any event, in recent cases, this Court has relaxed the stringent direct injury test and has
observed a liberal policy allowing ordinary citizens, members of Congress, and civil
organizations to prosecute actions involving the constitutionality or validity of laws, regulations
and rulings.26
We have also stressed in our prior decisions that the exercise by this Court of judicial power is
limited to the determination and resolution of actual cases and controversies.27 The Court, in
this case, finds that an actual case or controversy exists between the petitioners and the
COMELEC, the body charged with the enforcement and administration of all election laws.
Petitioners have alleged in a precise manner that they would engage in the very acts that
would trigger the enforcement of the provisionthey would file their CoCs and run in the 2010
elections. Given that the assailed provision provides for ipso facto resignation upon the filing
of the CoC, it cannot be said that it presents only a speculative or hypothetical obstacle to
petitioners' candidacy.28
IV.
Having hurdled what the OSG posed as obstacles to judicial review, the Court now delves into
the constitutional challenge.
It is noteworthy to point out that the right to run for public office touches on two fundamental
freedoms, those of expression and of association. This premise is best explained in Mancuso
v. Taft,29 viz.:
Freedom of expression guarantees to the individual the opportunity to write a letter to the local
newspaper, speak out in a public park, distribute handbills advocating radical reform, or picket
an official building to seek redress of grievances. All of these activities are protected by the
First Amendment if done in a manner consistent with a narrowly defined concept of public
order and safety. The choice of means will likely depend on the amount of time and energy
the individual wishes to expend and on his perception as to the most effective method of
projecting his message to the public. But interest and commitment are evolving phenomena.
What is an effective means for protest at one point in time may not seem so effective at a later the professional and the wealthy. Consequently we hold that candidacy is both a protected
date. The dilettante who participates in a picket line may decide to devote additional time and First Amendment right and a fundamental interest. Hence any legislative classification that
resources to his expressive activity. As his commitment increases, the means of effective significantly burdens that interest must be subjected to strict equal protection review.30
expression changes, but the expressive quality remains constant. He may decide to lead the
picket line, or to publish the newspaper. At one point in time he may decide that the most Here, petitioners' interest in running for public office, an interest protected by Sections 4 and 8
effective way to give expression to his views and to get the attention of an appropriate of Article III of the Constitution, is breached by the proviso in Section 13 of R.A. No. 9369. It is
audience is to become a candidate for public office-means generally considered among the now the opportune time for the Court to strike down the said proviso for being violative of the
most appropriate for those desiring to effect change in our governmental systems. He may equal protection clause and for being overbroad.
seek to become a candidate by filing in a general election as an independent or by seeking
the nomination of a political party. And in the latter instance, the individual's expressive activity
In considering persons holding appointive positions as ipso facto resigned from their posts
has two dimensions: besides urging that his views be the views of the elected public official,
upon the filing of their CoCs, but not considering as resigned all other civil servants,
he is also attempting to become a spokesman for a political party whose substantive program
specifically the elective ones, the law unduly discriminates against the first class. The fact
extends beyond the particular office in question. But Cranston has said that a certain type of
alone that there is substantial distinction between those who hold appointive positions and
its citizenry, the public employee, may not become a candidate and may not engage in any
those occupying elective posts, does not justify such differential treatment.
campaign activity that promotes himself as a candidate for public office. Thus the city has
stifled what may be the most important expression an individual can summon, namely that
which he would be willing to effectuate, by means of concrete public action, were he to be In order that there can be valid classification so that a discriminatory governmental act may
selected by the voters. pass the constitutional norm of equal protection, it is necessary that the four (4) requisites of
valid classification be complied with, namely:
It is impossible to ignore the additional fact that the right to run for office also affects the
freedom to associate. In Williams v. Rhodes, supra, the Court used strict review to invalidate (1) It must be based upon substantial distinctions;
an Ohio election system that made it virtually impossible for third parties to secure a place on
the ballot. The Court found that the First Amendment protected the freedom to associate by (2) It must be germane to the purposes of the law;
forming and promoting a political party and that that freedom was infringed when the state
effectively denied a party access to its electoral machinery. The Cranston charter provision (3) It must not be limited to existing conditions only; and
before us also affects associational rights, albeit in a slightly different way. An individual may
decide to join or participate in an organization or political party that shares his beliefs. He may (4) It must apply equally to all members of the class.
even form a new group to forward his ideas. And at some juncture his supporters and fellow
party members may decide that he is the ideal person to carry the group's standard into the
The first requirement means that there must be real and substantial differences between the
electoral fray. To thus restrict the options available to political organization as the Cranston
classes treated differently. As illustrated in the fairly recent Mirasol v. Department of Public
charter provision has done is to limit the effectiveness of association; and the freedom to
Works and Highways,31 a real and substantial distinction exists between a motorcycle and
associate is intimately related with the concept of making expression effective. Party access to
other motor vehicles sufficient to justify its classification among those prohibited from plying
the ballot becomes less meaningful if some of those selected by party machinery to carry the
the toll ways. Not all motorized vehicles are created equal a two-wheeled vehicle is less stable
party's programs to the people are precluded from doing so because those nominees are civil
and more easily overturned than a four-wheel vehicle.
servants.

Whether the right to run for office is looked at from the point of view of individual expression or
associational effectiveness, wide opportunities exist for the individual who seeks public office.
The fact of candidacy alone may open previously closed doors of the media. The candidate
may be invited to discuss his views on radio talk shows; he may be able to secure equal time
on television to elaborate his campaign program; the newspapers may cover his candidacy;
he may be invited to debate before various groups that had theretofore never heard of him or
his views. In short, the fact of candidacy opens up a variety of communicative possibilities that
are not available to even the most diligent of picketers or the most loyal of party followers. A
view today, that running for public office is not an interest protected by the First Amendment,
seems to us an outlook stemming from an earlier era when public office was the preserve of
Nevertheless, the classification would still be invalid if it does not comply with the second
requirement if it is not germane to the purpose of the law. Justice Isagani A. Cruz (Ret.), in his
treatise on constitutional law, explains,
The classification, even if based on substantial distinctions, will still be invalid if it is not
germane to the purpose of the law. To illustrate, the accepted difference in physical stamina
between men and women will justify the prohibition of the latter from employment as miners or
stevedores or in other heavy and strenuous work. On the basis of this same classification,
however, the law cannot provide for a lower passing average for women in the bar
examinations because physical strength is not the test for admission to the legal profession.
Imported cars may be taxed at a higher rate than locally assembled automobiles for the interest. Thus, in striking down a similar measure in the United States, Mancuso succinctly
protection of the national economy, but their difference in origin is no justification for treating declares'
them differently when it comes to punishing violations of traffic regulations. The source of the
vehicle has no relation to the observance of these rules.32 In proceeding to the second stage of active equal protection review, however, we do see
some contemporary relevance of the Mitchell decision. National Ass'n of Letter Carriers,
The third requirement means that the classification must be enforced not only for the present supra. In order for the Cranston charter provision to withstand strict scrutiny, the city must
but as long as the problem sought to be corrected continues to exist. And, under the last show that the exclusion of all government employees from candidacy is necessary to achieve
requirement, the classification would be regarded as invalid if all the members of the class are a compelling state interest. And, as stated in Mitchell and other cases dealing with similar
not treated similarly, both as to rights conferred and obligations imposed.33 statutes, see Wisconsin State Employees, supra; Broadrick, supra, government at all levels
has a substantial interest in protecting the integrity of its civil service. It is obviously
Applying the four requisites to the instant case, the Court finds that the differential treatment of conceivable that the impartial character of the civil service would be seriously jeopardized if
persons holding appointive offices as opposed to those holding elective ones is not germane people in positions of authority used their discretion to forward their electoral ambitions rather
to the purposes of the law. than the public welfare. Similarly if a public employee pressured other fellow employees to
engage in corrupt practices in return for promises of post-election reward, or if an employee
invoked the power of the office he was seeking to extract special favors from his superiors, the
The obvious reason for the challenged provision is to prevent the use of a governmental
civil service would be done irreparable injury. Conversely, members of the public, fellow-
position to promote one's candidacy, or even to wield a dangerous or coercive influence on
employees, or supervisors might themselves request favors from the candidate or might
the electorate. The measure is further aimed at promoting the efficiency, integrity, and
improperly adjust their own official behavior towards him. Even if none of these abuses
discipline of the public service by eliminating the danger that the discharge of official duty
actually materialize, the possibility of their occurrence might seriously erode the public's
would be motivated by political considerations rather than the welfare of the public.34 The
confidence in its public employees. For the reputation of impartiality is probably as crucial as
restriction is also justified by the proposition that the entry of civil servants to the electoral
the impartiality itself; the knowledge that a clerk in the assessor's office who is running for the
arena, while still in office, could result in neglect or inefficiency in the performance of duty
local zoning board has access to confidential files which could provide pressure points for
because they would be attending to their campaign rather than to their office work.
furthering his campaign is destructive regardless of whether the clerk actually takes
advantage of his opportunities. For all of these reasons we find that the state indeed has a
If we accept these as the underlying objectives of the law, then the assailed provision cannot compelling interest in maintaining the honesty and impartiality of its public work force.
be constitutionally rescued on the ground of valid classification. Glaringly absent is the
requisite that the classification must be germane to the purposes of the law. Indeed, whether
We do not, however, consider the exclusionary measure taken by Cranston-a flat prohibition
one holds an appointive office or an elective one, the evils sought to be prevented by the
on office-seeking of all kinds by all kinds of public employees-as even reasonably necessary
measure remain. For example, the Executive Secretary, or any Member of the Cabinet for that
to satisfaction of this state interest. As Justice Marshall pointed out in Dunn v.
matter, could wield the same influence as the Vice-President who at the same time is
Blumstein, [s]tatutes affecting constitutional rights must be drawn with precision. For three
appointed to a Cabinet post (in the recent past, elected Vice-Presidents were appointed to
sets of reasons we conclude that the Cranston charter provision pursues its objective in a far
take charge of national housing, social welfare development, interior and local government,
too heavy-handed manner and hence must fall under the equal protection clause. First, we
and foreign affairs). With the fact that they both head executive offices, there is no valid
think the nature of the regulation-a broad prophylactic rule-may be unnecessary to fulfillment
justification to treat them differently when both file their CoCs for the elections. Under the
of the city's objective. Second, even granting some sort of prophylactic rule may be required,
present state of our law, the Vice-President, in the example, running this time, let us say, for
the provision here prohibits candidacies for all types of public office, including many which
President, retains his position during the entire election period and can still use the resources
would pose none of the problems at which the law is aimed. Third, the provision excludes the
of his office to support his campaign.
candidacies of all types of public employees, without any attempt to limit exclusion to those
employees whose positions make them vulnerable to corruption and conflicts of interest.
As to the danger of neglect, inefficiency or partisanship in the discharge of the functions of his
appointive office, the inverse could be just as true and compelling. The public officer who files
There is thus no valid justification to treat appointive officials differently from the elective ones.
his certificate of candidacy would be driven by a greater impetus for excellent performance to
The classification simply fails to meet the test that it should be germane to the purposes of the
show his fitness for the position aspired for.
law. The measure encapsulated in the second proviso of the third paragraph of Section 13 of
R.A. No. 9369 and in Section 66 of the OEC violates the equal protection clause.
Mancuso v. Taft,35 cited above, explains that the measure on automatic resignation, which
restricts the rights of civil servants to run for officea right inextricably linked to their freedom of
V.
expression and association, is not reasonably necessary to the satisfaction of the state
The challenged provision also suffers from the infirmity of being overbroad.
First, the provision pertains to all civil servants holding appointive posts without distinction as
to whether they occupy high positions in government or not. Certainly, a utility worker in the
government will also be considered as ipso facto resigned once he files his CoC for the 2010
elections. This scenario is absurd for, indeed, it is unimaginable how he can use his position in
the government to wield influence in the political world.
While it may be admitted that most appointive officials who seek public elective office are
those who occupy relatively high positions in government, laws cannot be legislated for them
alone, or with them alone in mind. For the right to seek public elective office is universal, open
and unrestrained, subject only to the qualification standards prescribed in the Constitution and
in the laws. These qualifications are, as we all know, general and basic so as to allow the
widest participation of the citizenry and to give free rein for the pursuit of one's highest
aspirations to public office. Such is the essence of democracy.
Second, the provision is directed to the activity of seeking any and all public offices, whether
they be partisan or nonpartisan in character, whether they be in the national, municipal or
barangay level. Congress has not shown a compelling state interest to restrict the
fundamental right involved on such a sweeping scale.36
Specific evils require specific treatments, not through overly broad measures that unduly
restrict guaranteed freedoms of the citizenry. After all, sovereignty resides in the people, and
all governmental power emanates from them.
Mancuso v. Taft,37 on this point, instructs
As to approaches less restrictive than a prophylactic rule, there exists the device of the leave
of absence. Some system of leaves of absence would permit the public employee to take time
off to pursue his candidacy while assuring him his old job should his candidacy be
unsuccessful. Moreover, a leave of absence policy would eliminate many of the opportunities
for engaging in the questionable practices that the statute is designed to prevent. While
campaigning, the candidate would feel no conflict between his desire for election and his
publicly entrusted discretion, nor any conflict between his efforts to persuade the public and
his access to confidential documents. But instead of adopting a reasonable leave of absence
policy, Cranston has chosen a provision that makes the public employee cast off the security
of hard-won public employment should he desire to compete for elected office.
The city might also promote its interest in the integrity of the civil service by enforcing, through
dismissal, discipline, or criminal prosecution, rules or statutes that treat conflict of interests,
bribery, or other forms of official corruption. By thus attacking the problem directly, instead of
using a broad prophylactic rule, the city could pursue its objective without unduly burdening
the First Amendment rights of its employees and the voting rights of its citizens. Last term in
Dunn v. Blumstein, the Supreme Court faced an analogous question when the State of
Tennessee asserted that the interest of ballot box purity justified its imposition of one year and
three month residency requirements before a citizen could vote. Justice Marshall stated, inter
alia, that Tennessee had available a number of criminal statutes that could be used to punish
voter fraud without unnecessary infringement on the newcomer's right to vote. Similarly, it
appears from the record in this case that the Cranston charter contains some provisions that
might be used against opportunistic public employees.
Even if some sort of prophylactic rule is necessary, we cannot say that Cranston has put
much effort into tailoring a narrow provision that attempts to match the prohibition with the
problem. The charter forbids a Cranston public employee from running for any office,
anywhere. The prohibition is not limited to the local offices of Cranston, but rather extends to
statewide offices and even to national offices. It is difficult for us to see that a public employee
running for the United States Congress poses quite the same threat to the civil service as
would the same employee if he were running for a local office where the contacts and
information provided by his job related directly to the position he was seeking, and hence
where the potential for various abuses was greater. Nor does the Cranston charter except the
public employee who works in Cranston but aspires to office in another local jurisdiction, most
probably his town of residence. Here again the charter precludes candidacies which can pose
only a remote threat to the civil service. Finally, the charter does not limit its prohibition to
partisan office-seeking, but sterilizes also those public employees who would seek
nonpartisan elective office. The statute reviewed in Mitchell was limited to partisan political
activity, and since that time other courts have found the partisan-nonpartisan distinction a
material one. See Kinnear, supra; Wisconsin State Employees, supra; Gray v. Toledo, supra.
While the line between nonpartisan and partisan can often be blurred by systems whose true
characters are disguised by the names given them by their architects, it seems clear that the
concerns of a truly partisan office and the temptations it fosters are sufficiently different from
those involved in an office removed from regular party politics to warrant distinctive treatment
in a charter of this sort.
The third and last area of excessive and overinclusive coverage of the Cranston charter
relates not to the type of office sought, but to the type of employee seeking the office. As
Justice Douglas pointed out in his dissent in Mitchell, 330 U.S. at 120-126, 67 S.Ct.
556, restrictions on administrative employees who either participate in decision-making or at
least have some access to information concerning policy matters are much more justifiable
than restrictions on industrial employees, who, but for the fact that the government owns the
plant they work in, are, for purposes of access to official information, identically situated to all
other industrial workers. Thus, a worker in the Philadelphia mint could be distinguished from a
secretary in an office of the Department of Agriculture; so also could a janitor in the public
schools of Cranston be distinguished from an assistant comptroller of the same city. A second
line of distinction that focuses on the type of employee is illustrated by the cases
of Kinnear and Minielly, supra. In both of these cases a civil service deputy decided to run for
the elected office of sheriff. The courts in both cases felt that the no-candidacy laws in
question were much too broad and indicated that perhaps the only situation sensitive enough
to justify a flat rule was one in which an inferior in a public office electorally challenged his
immediate superior. Given all these considerations, we think Cranston has not given adequate
attention to the problem of narrowing the terms of its charter to deal with the specific kinds of
conflict-of-interest problems it seeks to avoid.
We also do not find convincing the arguments that after-hours campaigning will drain the
energy of the public employee to the extent that he is incapable of performing his job
effectively and that inevitable on-the-job campaigning and discussion of his candidacy will
disrupt the work of others. Although it is indisputable that the city has a compelling interest in
the performance of official work, the exclusion is not well-tailored to effectuate that interest.
Presumably the city could fire the individual if he clearly shirks his employment responsibilities
or disrupts the work of others. Also, the efficiency rationale common to both arguments is
significantly underinclusive. It applies equally well to a number of non-political, extracurricular
activities that are not prohibited by the Cranston charter. Finally, the connection between
after-hours campaigning and the state interest seems tenuous; in many cases a public
employee would be able to campaign aggressively and still continue to do his job well.38

Incidentally, Clements v. Fashing39 sustained as constitutional a provision on the automatic

resignation of District Clerks, County Clerks, County Judges, County Treasurers, Criminal
District Attorneys, County Surveyors, Inspectors of Hides and Animals, County
Commissioners, Justices of the Peace, Sheriffs, Assessors and Collectors of Taxes, District
Attorneys, County Attorneys, Public Weighers, and Constables if they announce their
candidacy or if they become candidates in any general, special or primary election.

In Clements, it may be readily observed that a provision treating differently particular officials,
as distinguished from all others, under a classification that is germane to the purposes of the
law, merits the stamp of approval from American courts. Not, however, a general and
sweeping provision, and more so one violative of the second requisite for a valid classification,
which is on its face unconstitutional.

On a final note, it may not be amiss to state that the Americans, from whom we copied the
provision in question, had already stricken down a similar measure for being unconstitutional.
It is high-time that we, too, should follow suit and, thus, uphold fundamental liberties over age-
old, but barren, restrictions to such freedoms.

WHEREFORE, premises considered, the petition is GRANTED. The second proviso in the
third paragraph of Section 13 of Republic Act No. 9369, Section 66 of the Omnibus Election
Code and Section 4(a) of COMELEC Resolution No. 8678 are declared as
UNCONSTITUTIONAL.

SO ORDERED.

ANTONIO EDUARDO B. NACHURA

Associate Justice
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 179695 December 18, 2008
MIKE A. FERMIN, petitioner,
vs.
COMMISSION ON ELECTIONS and UMBRA RAMIL BAYAM DILANGALEN, respondents.
G.R. No. 182369 December 18, 2008
MIKE A. FERMIN, petitioner,
vs.
COMMISSION ON ELECTIONS and UMBRA RAMIL BAYAM DILANGALEN, respondents.
DECISION
NACHURA, J.:
These consolidated petitions provide a welcome avenue for the Court to dichotomize, once
and for all, two popular remedies to prevent a candidate from running for an elective position
which are indiscriminately interchanged by the Bench and the Bar, adding confusion to the
already difficult state of our jurisprudence on election laws.
For the Court’s resolution are two petitions for certiorari under Rule 64 in relation to Rule 65 of
the Rules of Court: (1) G.R. No. 179695, which assails the June 29, 2007 Resolution1 of the
Commission on Elections (COMELEC) 2ndDivision in SPA No. 07-372, and the September 20,
2007 Resolution2 of the COMELEC En Banc affirming the said division resolution; and (2)
G.R. No. 182369, which challenges the February 14, 2008 Resolution3 of the COMELEC
1st Division in SPR No. 45-2007, the March 13, 2008 Order4 of the COMELEC En
Banc denying petitioner’s motion for reconsideration, and the March 26, 2008 Entry of
Judgment5 issued by the Electoral Contests and Adjudication Department (ECAD) of the
Commission in the said case.
The relevant facts and proceedings follow.
After the creation of Shariff Kabunsuan,6 the Regional Assembly of the Autonomous Region in
Muslim Mindanao (ARMM), on November 22, 2006, passed Autonomy Act No. 2057 creating
the Municipality of Northern Kabuntalan in Shariff Kabunsuan. This new municipality was
constituted by separating Barangays Balong, Damatog, Gayonga, Guiawa, Indatuan,
Kapinpilan, P. Labio, Libungan, Montay, Sabaken and Tumaguinting from the Municipality of
Kabuntalan.8
Mike A. Fermin, the petitioner in both cases, was a registered voter of Barangay Payan,
Kabuntalan. On December 13, 2006, claiming that he had been a resident
of Barangay Indatuan for 1 year and 6 months, petitioner applied with the COMELEC for the
transfer of his registration record to the said barangay.9 In the meantime, the creation of North
Kabuntalan was ratified in a plebiscite on December 30, 2006,10 formally
making Barangay Indatuan a component of Northern Kabuntalan.
Thereafter, on January 8, 2007, the COMELEC approved petitioner's application for the
transfer of his voting record and registration as a voter to Precinct 21A of Barangay Indatuan,
Northern Kabuntalan.11 On March 29, 2007, Fermin filed his Certificate of Candidacy (CoC) for
mayor of Northern Kabuntalan in the May 14, 2007 National and Local Elections.12
On April 20, 2007, private respondent Umbra Ramil Bayam Dilangalen, another mayoralty
candidate, filed a Petition13 for Disqualification [the Dilangalen petition] against Fermin,
docketed as SPA (PES) No. A07-003 [re-docketed as SPA No. 07-372 before the COMELEC]
with the Office of the Provincial Election Supervisor of Shariff Kabunsuan. The petition alleged
that the petitioner did not possess the period of residency required for candidacy and that he
perjured himself in his CoC and in his application for transfer of voting record. The pertinent
portions of the petition follow:
1. THE PETITIONER is of legal age, a registered voter, resident and incumbent
Municipal Mayor of the Municipality of Northern Kabuntalan, holding office
at Barangay Paulino Labio in the Municipality of Northern Kabuntalan where he may
be served summons and other legal processes.
2. THE PETITIONER is a candidate for election as Mayor in the same Municipality
of Northern Kabuntalan, being a resident of and domiciled in the Municipality since
birth. The Respondent is also a candidate for the same office, Mayor in the same
Municipality of Northern Kabuntalan. He is, however, not a resident of the
Municipality.
3. THE RESPONDENT perjured himself when he swore to the truth of his statement
in his Certificate of Candidacy of being a resident of the Municipality for the last 38
years, when in truth and in fact he simply transferred his registration from the
Municipality of Kabuntalan on 13 December 2006, wherein he stated that he has
relocated to that municipality a year and six months earlier, or no earlier than June
2005.
4. THE RESPONDENT perjured himself when he swore to the truth of his statement
in his Certificate of Candidacy of being a resident of the Municipality for the last 38
years, when in truth and in fact he has stayed for at least 33 years
in Barangay Payan, Municipality [of] Kabunt[a]lan.
 5. THE RESPONDENT perjured himself when he swore to the truth of his statement
in his Application for Transfer that he is a resident of Barangay Indatuan on 13
December 2006, wherein he stated that he has relocated to that municipality a year
and six months earlier, or on or about June 2005, when in truth and in fact he has
never resided much less domiciled himself in Indatuan or anywhere else in the
Municipality of Northern Kabuntalan earlier than 14 May 2006.
6. THE RESPONDENT perjured himself when he swore to the truth of his statement
in his Certificate of Candidacy of being a resident of the Municipality for the last 38
years, when in truth and in fact he has never resided in the Municipality, but was
simply visiting the area whenever election is [f]ast approaching.
WHEREFORE, premises considered, it is most respectfully prayed that, [in
consideration] of the Respondent not possessing the residence required for
candidacy, and having perjured himself in a number of times, the Commission
disqualify the Respondent.14
Elections were held without any decision being rendered by the COMELEC in the said case.
After the counting and canvassing of votes, Dilangalen emerged as the victor with 1,849 votes
over Fermin’s 1,640.15 The latter subsequently filed an election protest (Election Case No.
2007-022) with the Regional Trial Court (RTC), Branch 13 of Cotabato City.16
G.R. No. 179695
On June 29, 2007, the COMELEC 2nd Division, in SPA No. 07-372, disqualified Fermin for not
being a resident of Northern Kabuntalan.17 It ruled that, based on his declaration that he is a
resident of Barangay Payan as of April 27, 2006 in his oath of office before Datu Andal
Ampatuan, Fermin could not have been a resident of BarangayIndatuan for at least one
year.18
The COMELEC En Banc, on September 20, 2007, affirmed the Division's ruling.19
Thus, petitioner instituted G.R. No. 179695 before this Court raising the following issues:
A.
WHETHER OR NOT THE PETITION TO DISQUALIFY PETITIONER FROM
SEEKING THE MAYORALTY POST OF THE MUNICIPALITY OF NORTHERN
KABUNTALAN SHOULD BE DISMISSED FOR HAVING BEEN FILED OUT OF
TIME.
B.
WHETHER OR NOT THE ONE (1) YEAR RESIDENCY REQUIREMENT AS
PROVIDED BY ART. 56, PAR. NO. 3, RULE XIII, RULES AND REGULATIONS
IMPLEMENTING THE LOCAL GOVERNMENT CODE OF THE AUTONOMOUS
REGION IN MUSLIM MINDANAO IS APPLICABLE TO PETITIONER, WHO
TRANSFERRED HIS VOTER'S REGISTRATION RECORD DUE TO CHANGE OF
RESIDENCE FROM BARANGAY PAYAN TO BARANGAY INDATUAN IN THE
SAME MUNICIPALITY OF KABUNTALAN.20
Petitioner contends that the Dilangalen petition is a petition to deny due course to or cancel a
CoC under Section 78 of the Omnibus Election Code (OEC).21 Following Republic Act (R.A.)
No. 6646, the same must be filed within 5 days from the last day for the filing of CoC, which, in
this case, is March 30, 2007, and considering that the said petition was filed by Dilangalen
only on April 20, 2007, the same was filed out of time. The COMELEC should have then
dismissed SPA No. 07-372 outright.22
Petitioner further argues that he has been a resident of Barangay Indatuan long before the
creation of Northern Kabuntalan. This change of residence prompted him to apply for the
transfer of his voter’s registration record from Barangay Payan to Barangay Indatuan.
Moreover, the one year residency requirement under the law is not applicable to candidates
for elective office in a newly created municipality, because the length of residency of all its
inhabitants is reckoned from the effective date of its creation.23
In his comment, private respondent counters that the petition it filed is one for disqualification
under Section 68 of the OEC which may be filed at any time after the last day for filing of the
CoC but not later than the candidate’s proclamation should he win in the elections. As he filed
the petition on April 20, 2007, long before the proclamation of the eventual winning candidate,
the same was filed on time.24
Private respondent likewise posits that petitioner failed to comply with the one-year residency
requirement for him to be able to run for an elective office in Northern Kabuntalan. Petitioner
applied for the transfer of his voting record on December 13, 2006, and this was approved
only on January 8, 2007.25
G.R. No. 182369
During the pendency of G.R. No. 179695 with the Court, Dilangalen filed, on September 27,
2007, with the RTC of Cotabato a motion to dismiss Election Case No. 07-022 on the ground
that Fermin had no legal standing to file the said protest, the COMELEC En Banc having
already affirmed his disqualification as a candidate; and this Court, in the abovementioned
case, did not issue an order restraining the implementation of the assailed COMELEC
resolutions.
The RTC, however, denied this motion on September 28, 2007. On motion for
reconsideration, the trial court remained steadfast in its stand that the election protest was
separate and distinct from the COMELEC proceedings, and that, unless restrained by the Whether or not the petition for certiorari and prohibition is dismissible in view of the
proper authority, it would continue hearing the protest.26 pendency of another action and whereby the result of the first action is
determinative of the second action in any event and regardless of which party is
Assailing the RTC’s denial of his motions, Dilangalen filed a Petition for Certiorari and successful.
Prohibition27 docketed as SPR No. 45-2007 with the COMELEC. On February 14, 2008, the
COMELEC 1st Division set aside the aforesaid orders of the trial court for having been issued F.
with grave abuse of discretion, prohibited the said court from acting on and proceeding with
the protest, and ordered it to dismiss the same.28 The COMELEC En Banc, on March 13, Whether or not there is forum shopping.
2008, denied petitioner’s motion for the reconsideration of the division’s ruling on account of
Fermin’s failure to pay the required fees. It further directed the issuance of an entry of
G.
judgment in the said case.29 On March 26, 2008, the ECAD recorded the finality of the ruling
in SPR No. 45-2007 in the Book of Entries of Judgments.30
Whether or not the public respondent, acting not in aid of its appellate jurisdiction,
has authority to issue TRO and/or Preliminary Injunction as ancillary remedy of the
These developments prompted Fermin to file another certiorari petition before this Court,
original action for certiorari and prohibition.
docketed as G.R. No. 182369. In this petition, Fermin raises the following issues for our
resolution:
H.
A.
Whether or not public respondent has jurisdiction to divest the Court of Judge
Ibrahim of its jurisdiction on the election protest case.31
Whether or not public respondent has departed from the accepted and usual course
of its rules of procedure, as to call for an exercise of the power of supervision by the
Honorable Court. The Court, on April 29, 2008, initially dismissed the said petition.32 Fermin subsequently filed
in succession his motions for reconsideration and for the consolidation of G.R. Nos. 179695 &
182369. Considering that the two petitions were interrelated, the Court resolved to consolidate
B.
them.

Whether or not public respondent in taking cognizance of the certiorari and

The Issues
prohibition not in aid of its appellate jurisdiction, acted without or in excess of
jurisdiction, or with grave abuse of discretion amounting to lack or in (sic) excess [of
jurisdiction]. The primordial issues in these consolidated cases may be encapsulated, as follows:

C. (1) Whether or not the Dilangalen petition is one under Section 68 or Section 78 of the OEC;

Whether or not public respondent, in ordering Judge Ibrahim to dismiss the election
protest case, acted without or in excess of jurisdiction, or with grave abuse of
discretion amounting to lack or in (sic) excess of jurisdiction.
D.
Whether or not public respondent, in not uniformly observing its process in the
service of its resolution and/or order, had denied to petitioner the equal protection of
the law.
(2) Whether or not it was filed on time;
(3) Whether or not the COMELEC gravely abuse its discretion when it declared petitioner as
not a resident of the locality for at least one year prior to the May 14, 2007 elections; and
(4) Whether or not the COMELEC gravely abuse its discretion when it ordered the dismissal of
Election Case No. 07-022 on the ground that Fermin had no legal standing to file the protest.
Our Ruling

E. I.
Pivotal in the ascertainment of the timeliness of the Dilangalen petition is its proper
characterization.
As aforesaid, petitioner, on the one hand, argues that the Dilangalen petition was filed
pursuant to Section 78 of the OEC; while private respondent counters that the same is based
on Section 68 of the Code.
After studying the said petition in detail, the Court finds that the same is in the nature of a
petition to deny due course to or cancel a CoC under Section 7833 of the OEC. The petition
contains the essential allegations of a "Section 78" petition, namely: (1) the candidate made a
representation in his certificate; (2) the representation pertains to a material matter which
would affect the substantive rights of the candidate (the right to run for the election for which
he filed his certificate); and (3) the candidate made the false representation with the intention
to deceive the electorate as to his qualification for public office or deliberately attempted to
mislead, misinform, or hide a fact which would otherwise render him ineligible.34 It likewise
appropriately raises a question on a candidate’s eligibility for public office, in this case, his
possession of the one-year residency requirement under the law.
Lest it be misunderstood, the denial of due course to or the cancellation of the CoC is not
based on the lack of qualifications but on a finding that the candidate made a material
representation that is false, which may relate to the qualifications required of the public office
he/she is running for. It is noted that the candidate states in his/her CoC that he/she is eligible
for the office he/she seeks. Section 78 of the OEC, therefore, is to be read in relation to
the constitutional35 and statutory36 provisions on qualifications or eligibility for public
office. If the candidate subsequently states a material representation in the CoC that is
false, the COMELEC, following the law, is empowered to deny due course to or cancel
such certificate.37 Indeed, the Court has already likened a proceeding under Section 78 to
a quo warranto proceeding under Section 25338 of the OEC since they both deal with the
eligibility or qualification of a candidate,39 with the distinction mainly in the fact that a "Section
78" petition is filed before proclamation, while a petition for quo warranto is filed after
proclamation of the wining candidate.
At this point, we must stress that a "Section 78" petition ought not to be interchanged or
confused with a "Section 68" petition. They are different remedies, based on different
grounds, and resulting in different eventualities. Private respondent’s insistence,
therefore, that the petition it filed before the COMELEC in SPA No. 07-372 is in the nature of a
disqualification case under Section 68, as it is in fact captioned a "Petition for Disqualification,"
does not persuade the Court.
The ground raised in the Dilangalen petition is that Fermin allegedly lacked one of the
qualifications to be elected as mayor of Northern Kabuntalan, i.e., he had not established
residence in the said locality for at least one year immediately preceding the election. Failure
to meet the one-year residency requirement for the public office is not a ground for the
"disqualification" of a candidate under Section 68. The provision only refers to the commission
of prohibited acts and the possession of a permanent resident status in a foreign country as
grounds for disqualification, thus:
SEC. 68. Disqualifications.–Any candidate who, in an action or protest in which he is
a party is declared by final decision of a competent court guilty of, or found by the
Commission of having (a) given money or other material consideration to influence,
induce or corrupt the voters or public officials performing electoral functions; (b)
committed acts of terrorism to enhance his candidacy; (c) spent in his election
campaign an amount in excess of that allowed by this Code; (d) solicited, received
or made any contribution prohibited under Sections 89, 95, 96, 97 and 104; or (e)
violated any of Sections 80, 83, 85, 86 and 261, paragraphs d, e, k, v, and cc,
subparagraph 6, shall be disqualified from continuing as a candidate, or if he has
been elected, from holding the office. Any person who is a permanent resident of or
an immigrant to a foreign country shall not be qualified to run for any elective office
under this Code, unless said person has waived his status as a permanent resident
or immigrant of a foreign country in accordance with the residence requirement
provided for in the election laws.
Likewise, the other provisions of law referring to "disqualification" do not include the lack of the
one-year residency qualification as a ground therefor, thus:
Sections 12 of the OEC
SEC. 12. Disqualifications.–Any person who has been declared by
competent authority insane or incompetent, or has been sentenced by
final judgment for subversion, insurrection, rebellion, or for any offense for
which he has been sentenced to a penalty of more than eighteen months
or for a crime involving moral turpitude, shall be disqualified to be a
candidate and to hold any office, unless he has been given plenary
pardon or granted amnesty.
The disqualifications to be a candidate herein provided shall be deemed
removed upon the declaration by competent authority that said insanity or
incompetence had been removed or after the expiration of a period of five
years from his service or sentence, unless within the same period he
again becomes disqualified.
Section 40 of the Local Government Code (LGC)40
SECTION 40. Disqualifications–The following persons are disqualified
from running for any elective local position:
(a) Those sentence by final judgment for an offense involving
moral turpitude or for an offense punishable by one (1) year or
 more of imprisonment, within two (2) years after serving
sentence;
(b) Those removed from office as a result of an administrative
case;
(c) Those convicted by final judgment for violating the oath of
allegiance to the Republic;
(d) Those with dual citizenship;
(e) Fugitive from justice in criminal or nonpolitical cases here or
abroad;
(f) Permanent residents in a foreign country or those who have
acquired the right to reside abroad and continue to avail of the
same right after the effectivity of this Code; and
(g) The insane or feeble-minded.
Considering that the Dilangalen petition does not state any of these grounds for
disqualification, it cannot be categorized as a "Section 68" petition.
To emphasize, a petition for disqualification, on the one hand, can be premised on Section 12
or 68 of the OEC, or Section 40 of the LGC. On the other hand, a petition to deny due course
to or cancel a CoC can only be grounded on a statement of a material representation in the
said certificate that is false. The petitions also have different effects. While a person who is
disqualified under Section 68 is merely prohibited to continue as a candidate, the person
whose certificate is cancelled or denied due course under Section 78 is not treated as a
candidate at all, as if he/she never filed a CoC. Thus, in Miranda v. Abaya,41 this Court made
the distinction that a candidate who is disqualified under Section 68 can validly be substituted
under Section 77 of the OEC because he/she remains a candidate until disqualified; but a
person whose CoC has been denied due course or cancelled under Section 78 cannot be
substituted because he/she is never considered a candidate.42
In support of his claim that he actually filed a "petition for disqualification" and not a "petition to
deny due course to or cancel a CoC," Dilangalen takes refuge in Rule 25 of the COMELEC
Rules of Procedure,43 specifically Section 144 thereof, to the extent that it states, "[a]ny
candidate who does not possess all the qualifications of a candidate as provided for by the
Constitution or by existing law x x x may be disqualified from continuing as a candidate," and
COMELEC Resolution No. 780045 (Rules Delegating to COMELEC Field Officials the
Authority to Hear and Receive Evidence in Disqualification Cases Filed in Connection with the
May 14, 2007 National and Local Elections), which states in Section 5(C)(1) and (3)(a)(4) that:
Sec. 5. Procedure in filing petitions.–For purposes of the preceding section, the
following procedure shall be observed:
xxxx
C. PETITION TO DISQUALIFY A CANDIDATE PURSUANT TO SEC. 68 OF THE
OMNIBUS ELECTION CODE AND PETITION TO DISQUALIFY FOR LACK OF
QUALIFICATIONS OR POSSESSING SOME GROUNDS FOR
DISQUALIFICATION
1) A verified petition to disqualify a candidate pursuant to Sec. 68 of the OEC and
the verified petition to disqualify a candidate for lack of qualifications or possessing
some grounds for disqualification may be filed on any day after the last day for filing
of certificates of candidacy but not later than the date of proclamation.
xxxx
3) The petition to disqualify a candidate for lack of qualification or possessing some
grounds for disqualification, shall be filed in ten (10) legible copies with the
concerned office mentioned in Sec. 3 hereof, personally or through a duly
authorized representative by any person of voting age, or duly registered political
party, organization or coalition of political parties on the grounds that any candidate
does not possess all the qualifications of a candidate as provided for by the
constitution or by existing law, or who possesses some grounds for disqualification,
3.a. Disqualification under existing election laws:
1. For not being a citizen of the Philippines;
2. For being a permanent resident of or an immigrant to a foreign country;
3. For lack of the required age;
4. For lack of residence;
5. For not being a registered voter;
6. For not being able to read and write;
7. In case of a party-list nominee, for not being a bona fide member of the
party or organization which he seeks to represent for at least ninety (90)
days immediately preceding the day of the election. [Emphasis supplied.]
We disagree. A COMELEC rule or resolution cannot supplant or vary the legislative
enactments that distinguish the grounds for disqualification from those of ineligibility, and the
appropriate proceedings to raise the said grounds. In other words, Rule 25 and COMELEC
Resolution No. 7800 cannot supersede the dissimilar requirements of the law for the filing of a
petition for disqualification under Section 68, and a petition for the denial of due course to or
cancellation of CoC under Section 78 of the OEC.46 As aptly observed by the eminent
constitutionalist, Supreme Court Justice Vicente V. Mendoza, in his separate opinion
in Romualdez-Marcos v. Commission on Elections:47
Apparently realizing the lack of an authorized proceeding for declaring the
ineligibility of candidates, the COMELEC amended its rules on February 15, 1993 so
as to provide in Rule 25, §1 the following:
Grounds for disqualification. – Any candidate who does not possess all
the qualifications of a candidate as provided for by the Constitution or by
existing law or who commits any act declared by law to be grounds for
disqualification may be disqualified from continuing as a candidate.
The lack of provision for declaring the ineligibility of candidates, however,
cannot be supplied by a mere rule. Such an act is equivalent to the creation of
a cause of action which is a substantive matter which the COMELEC, in the
exercise of its rule-making power under Art. IX, A, §6 of the Constitution,
cannot do. It is noteworthy that the Constitution withholds from the COMELEC even
the power to decide cases involving the right to vote, which essentially involves an
inquiry into qualifications based on age, residence and citizenship of voters. [Art. IX,
C, §2(3)]
The assimilation in Rule 25 of the COMELEC rules of grounds for ineligibility
into grounds for disqualification is contrary to the evident intention of the law.
For not only in their grounds but also in their consequences are proceedings
for "disqualification" different from those for a declaration of "ineligibility."
"Disqualification" proceedings, as already stated, are based on grounds
specified in §12 and §68 of the Omnibus Election Code and in §40 of the Local
Government Code and are for the purpose of barring an individual from
becoming a candidate or from continuing as a candidate for public office. In a
word, their purpose is to eliminate a candidate from the race either from the
start or during its progress. "Ineligibility," on the other hand, refers to the lack
of the qualifications prescribed in the Constitution or the statutes for holding
public office and the purpose of the proceedings for declaration of ineligibility
is to remove the incumbent from office.
Consequently, that an individual possesses the qualifications for a public
office does not imply that he is not disqualified from becoming a candidate or
continuing as a candidate for a public office and vice-versa. We have this sort
of dichotomy in our Naturalization Law. (C.A. No. 473) That an alien has the
qualifications prescribed in §2 of the law does not imply that he does not suffer from
any of [the] disqualifications provided in §4.
Indeed, provisions for disqualifications on the ground that the candidate is guilty of
prohibited election practices or offenses, like other pre-proclamation remedies, are
aimed at the detestable practice of "grabbing the proclamation and prolonging the
election protest," through the use of "manufactured" election returns or resort to
other trickery for the purpose of altering the results of the election. This rationale
does not apply to cases for determining a candidate’s qualifications for office before
the election. To the contrary, it is the candidate against whom a proceeding for
disqualification is brought who could be prejudiced because he could be prevented
from assuming office even though in the end he prevails.48
Furthermore, the procedure laid down in the said Rule 25 of the COMELEC Rules of
Procedure cannot be used in "Section 78" proceedings, precisely because a different rule,
Rule 23,49 specifically governs petitions to deny due course to or cancel CoCs.
II.
Having thus determined that the Dilangalen petition is one under Section 78 of the OEC, the
Court now declares that the same has to comply with the 25-day statutory period for its
filing. Aznar v. Commission on Elections50 and Loong v. Commission on Elections51 give
ascendancy to the express mandate of the law that "the petition may be filed at any time not
later than twenty-five days from the time of the filing of the certificate of candidacy."
Construed in relation to reglementary periods and the principles of prescription, the dismissal
of "Section 78" petitions filed beyond the 25-day period must come as a matter of course.
We find it necessary to point out that Sections 5 and 752 of Republic Act (R.A.) No.
6646,53 contrary to the erroneous arguments of both parties, did not in any way amend the
period for filing "Section 78" petitions. While Section 7 of the said law makes reference to
Section 5 on the procedure in the conduct of cases for the denial of due course to the CoCs of
nuisance candidates54 (retired Chief Justice Hilario G. Davide, Jr., in his dissenting opinion in
Aquino v. Commission on Elections55 explains that "the ‘procedure hereinabove provided’
mentioned in Section 7 cannot be construed to refer to Section 6 which does not provide for a
procedure but for the effects of disqualification cases, [but] can only refer to the procedure
provided in Section 5 of the said Act on nuisance candidates x x x."), the same cannot be
taken to mean that the 25-day period for filing "Section 78" petitions under the OEC is
changed to 5 days counted from the last day for the filing of CoCs. The clear language of
Section 78 certainly cannot be amended or modified by the mere reference in a subsequent
statute to the use of a procedure specifically intended for another type of action. Cardinal is
the rule in statutory construction that repeals by implication are disfavored and will not be so
declared by the Court unless the intent of the legislators is manifest.56In addition, it is
noteworthy that Loong,57 which upheld the 25-day period for filing "Section 78" petitions, was
decided long after the enactment of R.A. 6646. In this regard, we therefore find as contrary to
the unequivocal mandate of the law, Rule 23, Section 2 of the COMELEC Rules of Procedure
which states:
Sec. 2. Period to File Petition.–The petition must be filed within five (5) days
following the last day for the filing of certificates of candidacy.
As the law stands, the petition to deny due course to or cancel a CoC "may be filed at any
time not later than twenty-five days from the time of the filing of the certificate of
candidacy."
Accordingly, it is necessary to determine when Fermin filed his CoC in order to ascertain
whether the Dilangalen petition filed on April 20, 2007 was well within the restrictive 25-day
period. If it was not, then the COMELEC should have, as discussed above, dismissed the
petition outright.
The record in these cases reveals that Fermin filed his CoC for mayor of Northern Kabuntalan
for the May 14, 2007 National and Local Elections on March 29, 2007.58 It is clear therefore
that the petition to deny due course to or cancel Fermin’s CoC was filed by Dilangalen well
within the 25-day reglementary period. The COMELEC therefore did not abuse its discretion,
much more gravely, when it did not dismiss the petition outright.
III.
However, the Court finds the COMELEC to have gravely abused its discretion when it
precipitately declared that Fermin was not a resident of Northern Kabuntalan for at least one
year prior to the said elections.
In its assailed June 29, 2007 Resolution, 59 the COMELEC ruled as follows:
In the petitioner’s memorandum, an authenticated copy of the respondent’s oath of
office subscribed and sworn to before Datu Andal Ampatuan, Governor
Maguindanao Province, it was stated that respondent’s residence is
at Barangay Payan, Maguindanao (sic) as of April 27, 2006. Clearly the respondent
is not a resident of Northern Kabuntalan earlier than 15 May 2006 as his very own
oath of office would reveal that he is really a resident of Barangay Payan,
Kabuntalan less than 365 days immediately preceding the May 14, 2007 elections.
He is a resident of a barangay not a component of the local government unit in
which he seeks to be elected as of May 15, 2006 and is therefore not qualified or
eligible to seek election as mayor in the said municipality.60
Obviously, the COMELEC relied on a single piece of evidence to support its finding that
petitioner was not a resident of Barangay Indatuan, Northern Kabuntalan, i.e., the oath of
office subscribed and sworn to before Governor Datu Andal Ampatuan, in which petitioner
indicated that he was a resident of Barangay Payan, Kabuntalan as of April 27, 2006.
However, this single piece of evidence does not necessarily support a finding that petitioner
was not a resident of Northern Kabuntalan as of May 14, 2006, or one year prior to the May
14, 2007 elections.61 Petitioner merely admitted that he was a resident of another locality as of
April 27, 2006, which was more than a year before the elections. It is not inconsistent with his
subsequent claim that he complied with the residency requirement for the elective office, as
petitioner could have transferred to Barangay Indatuan after April 27, 2006, on or before May
14, 2006.
Neither does this evidence support the allegation that petitioner failed to comply with the
residency requirement for the transfer of his voting record from Barangay Payan
to Barangay Indatuan. Given that a voter is required to reside in the place wherein he
proposes to vote only for six months immediately preceding the election,62 petitioner’s
application for transfer on December 13, 2006 does not contradict his earlier admission that
he was a resident of Barangay Payan as of April 27, 2006. Be that as it may, the issue
involved in the Dilangalen petition is whether or not petitioner made a material representation
that is false in his CoC, and not in his application for the transfer of his registration and voting
record.
The foregoing considered, the Court finds that the Dilangalen petition does not make out
a prima facie case. Its dismissal is therefore warranted. We emphasize that the mere filing of
a petition and the convenient allegation therein that a candidate does not reside in the locality
where he seeks to be elected is insufficient to effect the cancellation of his CoC. Convincing
evidence must substantiate every allegation.63 A litigating party is said to have a prima
facie case when the evidence in his favor is sufficiently strong for his opponent to be called on
to answer it. A prima facie case, then, is one which is established by sufficient evidence and
can be overthrown only by rebutting evidence adduced on the other side.64
IV.
In light of the foregoing disquisition, the COMELEC’s order for the dismissal of Fermin’s
election protest is tainted with grave abuse of discretion, considering that the same is
premised on Fermin’s alleged lack of legal standing to file the protest, which, in turn, is based
on Fermin’s alleged lack of residency qualification. With our disposition herein that the
Dilangalen petition should be dismissed, a disquisition that Fermin has no standing as a
candidate would be reckless and improper.
WHEREFORE, premises considered, the petitions for certiorari are GRANTED. The assailed
issuances of the COMELEC are ANNULLED and SET ASIDE.
SO ORDERED.
ANTONIO EDUARDO B. NACHURA
Associate Justice
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 191938 October 19, 2010
ABRAHAM KAHLIL B. MITRA, Petitioner,
vs.
COMMISSION ON ELECTIONS, ANTONIO V. GONZALES and ORLANDO R. BALBON,
JR., Respondents.
RESOLUTION
BRION, J.:
We resolve the Motion for Reconsideration1 filed by public respondent Commission on
Elections (COMELEC) and the Motion for Reconsideration with Motion for Oral
Arguments2 filed by private respondents Antonio V. Gonzales and Orlando R. Balbon, Jr.
(private respondents), dated July 19, 2010 and July 20, 2010, respectively, addressing our
Decision of July 2, 20103 (July 2, 2010 Decision or Decision). We annulled in this Decision the
February 10, 2010 and May 4, 2010 Resolutions of the COMELEC, and denied the private
respondents’ petition to cancel the Certificate of Candidacy (COC) of petitioner Abraham
Kahlil B. Mitra (Mitra).
The Assailed Ruling
To recall its highlights, our Decision emphasized that despite our limited certiorari jurisdiction
in election cases, we are not only obliged but are constitutionally bound to intervene when the
COMELEC’s action on the appreciation and evaluation of evidence oversteps the limits of its
discretion – in this case, a situation where resulting errors, arising from the grave abuse
committed by the COMELEC, mutated from being errors of judgment to errors of jurisdiction.
Based on our evaluation of the evidence presented by both parties, we found that Mitra did
not commit any deliberate material misrepresentation in his COC. We noted, too, that the
COMELEC gravely abused its discretion in its appreciation of the evidence, leading it to
conclude that Mitra is not a resident of Aborlan, Palawan. We also found that the COMELEC
failed to critically consider whether Mitra deliberately attempted to mislead, misinform or hide
a fact that would otherwise render him ineligible for the position of Governor of Palawan.
On the critical question of whether Mitra deliberately misrepresented his Aborlan residence to
deceive and mislead the people of the Province of Palawan, we found that Mitra did not. In
fact, Mitra adduced positive evidence of transfer of residence which the private respondents’
evidence failed to sufficiently controvert. Specifically, the private respondents’ evidence failed
to show that Mitra remained a Puerto Princesa City resident.
In this regard, we took note of the "incremental moves" Mitra undertook to establish his new
domicile in Aborlan, as evidenced by the following: (1) his expressed intent to transfer to a
residence outside of Puerto Princesa City to make him eligible for a provincial position; (2) his
preparatory moves starting in early 2008; (3) the transfer of registration as a voter in March
2009; (4) his initial transfer through a leased dwelling at Maligaya Feedmill; (5) the purchase
of a lot for his permanent home; and (6) the construction of a house on the said lot which is
adjacent to the premises he was leasing pending the completion of his house. Thus, we found
that under the situation prevailing when Mitra filed his COC, there is no reason to infer that
Mitra committed any misrepresentation, whether inadvertently or deliberately, in claiming
residence in Aborlan. We also emphasized that the COMELEC could not even present any
legally acceptable basis (as it used subjective non-legal standards in its analysis) to conclude
that Mitra’s statement in his COC concerning his residence was indeed a misrepresentation.
In sum, we concluded that the evidence in the present case, carefully reviewed, showed that
Mitra indeed transfered his residence from Puerto Princesa City to Aborlan within the period
required by law.
The Motions for Reconsideration
In its Motion for Reconsideration dated July 19, 2010, the COMELEC, through the Office of
the Solicitor General, asks us to reconsider our July 2, 2010 Decision on the sole ground that:
THIS HONORABLE COURT ERRED WHEN IT REVIEWED THE PROBATIVE VALUE OF
THE EVIDENCE PRESENTED AND SUBSTITUTED ITS OWN FACTUAL FINDINGS OVER
THAT OF [THE] PUBLIC RESPONDENT.4
The COMELEC argues that we overstepped our review power over its factual findings; as a
specialized constitutional body, the findings and conclusions of the COMELEC are generally
respected and even given the status of finality. The COMELEC also contends that the Court
erred in taking cognizance of the present petition since the issues raised therein are
essentially factual in nature. It claims that it is elementary that the extraordinary remedy of
certiorari is limited to correcting questions of law and that the factual issues raised in the
present petition are not appropriate for a petition for review on certiorari.
On the merits, the COMELEC submits that there is substantial, if not overwhelming, evidence
that Mitra is not a resident of Aborlan, Palawan. It argues that it merely took cognizance of
Mitra’s purported dwelling’s "habitableness," or lack thereof, to determine the fact of
residency; while Mitra may have exhibited his intention to transfer his domicile, the fact of
actual residency was lacking.
For their part, the private respondents raise the following errors in support of their Motion for
Reconsideration with Motion for Oral Arguments dated July 20, 2010, viz:
I.
THE MAJORITY ERRED IN EXERCISING THIS HONORABLE COURT’S LIMITED
CERTIORARI JURISDICTION EVEN WHEN THE PETITION, ON ITS FACE, FAILED TO
SHOW HOW THE COMELEC COMMITTED GRAVE ABUSE OF DISCRETION.
II.
THE MAJORITY ERRED IN CONCLUDING THAT THE COMELEC COMMITTED GRAVE
ABUSE OF DISCRETION BY USING SUBJECTIVE AND NON-LEGAL STANDARDS IN
ASSESSING THE EVIDENCE SUBMITTED BY MITRA.
III.
GRANTING WITHOUT ADMITTING THAT THE COMELEC COMMITTED GRAVE ABUSE
OF DISCRETION IN ONE ASPECT OF ITS RESOLUTION, THE SUPREME COURT
SHOULD NONETHELESS CONSIDER WHETHER THE OTHER EVIDENCE SUBMITTED
ARE ENOUGH TO SUSTAIN THE RULING OF THE COMELEC.
A.
THE QUANTUM OF EVIDENCE NECESSARY TO OVERTURN THE FINDINGS
OF FACTS OF THE COMELEC SHOULD BE CLEAR AND CONVINCING
EVIDENCE. WHEN THE EVIDENCE OF [THE] PETITIONER ARE
UNSUBSTANTIATED AND CONTROVERTED, THE SAME FAILS TO REACH THE
QUANTUM OF PROOF NECESSARY TO SUBSTITUTE THE FINDINGS OF THE
COMELEC.
IV.
THE MAJORITY ERRED IN FOCUSING ON THE COMELEC’S OPINION REGARDING THE
PHOTOGRAPHS SUBMITTED BY MITRA OF HIS SUPPOSED RESIDENCE, WHILE
TOTALLY DISREGARDING OTHER EVIDENCE SUBMITTED BY THE PRIVATE
RESPONDENTS AND CONSIDERED BY THE COMELEC.
A.
THE MAJORITY ERRED IN DISREGARDING THE EFFECTIVITY OF THE
CONTRACT OF LEASE WHICH SHOWS THAT THE SAME IS ONLY UP TO 28
FEBRUARY 2010.
B.
THE MAJORITY ERRED IN DISREGARDING EVIDENCE WHICH SHOW THAT
MITRA FAILED TO ABANDON HIS DOMICILE OF ORIGIN.
V.
THE MAJORITY ERRED IN HOLDING THAT MITRA HAD TRANSFERRED HIS
RESIDENCE FROM HIS DOMICILE OF ORIGIN IN PUERTO PRINCESA CITY TO HIS
DOMICILE OF CHOICE IN ABORLAN, IN AN INCREMENTAL PROCESS.
VI.
THE MAJORITY ERRED IN HOLDING THAT MITRA DID NOT COMMIT ANY DELIBERATE
MATERIAL MISREPRESENTATION IN HIS COC.
A.
THE MATERIAL STATEMENT IN PETITIONER’S COC RESPECTING HIS
RESIDENCE HAS BEEN SHOWN TO BE FALSE. BY MAKING SUCH FALSE
STATEMENT, PETITIONER DELIBERATELY TRIED TO MISLEAD AND TO
MISINFORM THE ELECTORATE AS TO HIS ACTUAL RESIDENCE. HENCE, HIS
COC WAS CORRECTLY DENIED DUE COURSE AND CANCELLED.
B.
THE MAJORITY ERRED IN EXONERATING MITRA FROM THE VIOLATION OF A
MANDATORY PROVISION OF LAW WHICH ENTAILS BOTH ADMINISTRATIVE
AND CRIMINAL LIABILITIES BY INVOKING THE PURPOSE OF THE LAW
WHERE SUCH RESORT IS NOT CALLED FOR IN VIEW OF THE GIVEN FACTS
AND EVIDENCE PRESENTED IN THIS CASE.
VII.
JURISPRUDENCE RELIED ON BY THE MAJORITY IS NOT APPLICABLE TO THE
PRESENT CASE.
A.
THE CASE OF TORAYNO V. COMELEC IS NOT APPLICABLE TO THE PRESENT
CASE.
B.
THE CASE OF ASISTIO V. TRINIDAD PE-AGUIRRE IS LIKEWISE NOT
APPLICABLE TO THE PRESENT CASE.
C.
 THE CASE OF VELASCO SHOULD BE APPLIED STRICTLY TO THE PRESENT
CASE.5
Our Ruling
We resolve to deny, for lack of merit, the motions for reconsideration and for oral arguments.
We note at the outset that the COMELEC and private respondents’ arguments are mere
rehashes of their previous submissions; they are the same arguments addressing the issues
we already considered and passed upon in our July 2, 2010 Decision. Thus, both the
COMELEC and private respondents failed to raise any new and substantial argument meriting
reconsideration. The denial of the motion for oral arguments proceeds from this same
reasoning; mere reiterations of the parties’ original submissions on issues our Decision has
sufficiently covered, without more, do not merit the time, effort and attention that an oral
argument shall require.
Having said these, we shall still proceed to discuss the aspects of the case the motions
touched upon, if only to put an end to lingering doubts on the correctness of our July 2, 2010
Decision.
First, both the COMELEC and the private respondents posit that the Court improperly
exercised its limited certiorari jurisdiction; they theorize that Mitra’s petition failed to allege and
show errors of jurisdiction or grave abuse of discretion on the part of the COMELEC. They
also stress that the Court should respect and consider the COMELEC’s findings of fact to be
final and non-reviewable.
The COMELEC’s submission in this regard – that the extraordinary remedy of certiorari is
limited to corrections of questions of law and that the factual issues raised in the present
petition are not appropriate for a petition for review on certiorari – is wholly erroneous. This
submission appears to have confused the standards of the Court’s power of review under
Rule 65 and Rule 45 of the Rules of Court, leading the COMELEC to grossly misread the
import of Mitra’s petition before the Court.
To recall, Mitra brought his case before us via a petition for certiorari, pursuant to Section 2,
Rule 64, in relation to Rule 65, of the Rules of Court. Thus, in our July 2, 2010 Decision, we
emphasized that our review (under the Rule 65 standard of grave abuse of discretion, and not
under the Rule 45 question of law standard) is based on a very limited ground, i.e., on the
jurisdictional issue of whether the COMELEC acted without or in excess of its jurisdiction, or
with grave abuse of discretion amounting to lack or excess of jurisdiction.
The basis for the Court’s review of COMELEC rulings under the standards of Rule 65 of the
Rules of Court is Section 7, Article IX-A of the Constitution which provides that "[U]nless
otherwise provided by [the] Constitution or by law, any decision, order, or ruling of each
Commission may be brought to the Supreme Court on certiorari by the aggrieved party within
thirty days from receipt of a copy thereof." For this reason, the Rules of Court provide for a
separate rule (Rule 64) specifically applicable only to decisions of the COMELEC and the
Commission on Audit. This Rule expressly refers to the application of Rule 65 in the filing of a
petition for certiorari, subject to the exception clause – "except as hereinafter provided."6
In Aratuc v. Commission on Elections7 and Dario v. Mison,8 the Court construed the above-
cited constitutional provision as relating to the special civil action for certiorari under Rule 65
(although with a different reglementary period for filing) and not to an appeal by certiorari
under Rule 45 of the Rules of Court. Thus, Section 2 of Rule 64 of the Rules of Court now
clearly specifies that the mode of review is the special civil action of certiorari under Rule 65,
except as therein provided. In Ocate v. Commission on Elections,9 we further held that:
The purpose of a petition for certiorari is to determine whether the challenged tribunal has
acted without or in excess of its jurisdiction or with grave abuse of discretion amounting to lack
or excess of jurisdiction.1avvphi1 Thus, any resort to a petition for certiorari under Rule 64 in
relation to Rule 65 of the 1997 Rules of Civil Procedure is limited to the resolution of
jurisdictional issues.
The COMELEC should likewise be aware that the Constitution itself,10 in defining judicial
power, pointedly states that –
Judicial power includes the duty of the courts of justice to settle actual controversies involving
rights which are legally demandable and enforceable, and to determine whether or not there
has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of
any branch or instrumentality of the Government.
This provision, more than anything else, identifies the power and duty of this Court in grave
abuse of discretion situations, and differentiates this authority from the power of review by
appeal that Rule 45 of the Rules of Court defines.
Based on these considerations, we cannot accept the COMELEC’s position that patently
confuses the mode of review in election cases under Rules 64 and 65 of the Rules of Court,
with the appellate review that Rule 45 of the same Rules provides.
We likewise reject the COMELEC and the private respondents’ proposition that the Court
erred in exercising its limited certiorari jurisdiction. Although the COMELEC is admittedly the
final arbiter of all factual issues as the Constitution11 and the Rules of Court12 provide, we
stress that in the presence of grave abuse of discretion, our constitutional duty is to intervene
and not to shy away from intervention simply because a specialized agency has been given
the authority to resolve the factual issues.
As we emphasized in our Decision, we have in the past recognized exceptions to the general
rule that the Court ordinarily does not review in a certiorari case the COMELEC’s appreciation
and evaluation of evidence. One such exception is when the COMELEC’s appreciation and
evaluation of evidence go beyond the limits of its discretion to the point of being grossly
unreasonable. In this situation, we are duty bound under the Constitution to intervene and
correct COMELEC errors that, because of the attendant grave abuse of discretion, have
mutated into errors of jurisdiction.
Our Decision clearly pointed out Mitra’s submissions and arguments on grave abuse of
discretion, namely, that the COMELEC failed to appreciate that the case is a cancellation of a
COC proceeding and that the critical issue is the presence of deliberate false material
representation to deceive the electorate. In fact, Mitra’s petition plainly argued that the
COMELEC’s grave abuse of discretion was patent when it failed to consider that the ground to
deny a COC is deliberate false representation. We completely addressed this issue and, in the
process, analyzed the reasoning in the assailed COMELEC decision. At every step, we found
that the COMELEC committed grave abuse of discretion in the appreciation of the evidence.
Second, the private respondents contend that the COMELEC did not use subjective non-legal
standards (i.e., interior decoration of the room) in arriving at its decision; it merely stated how
it perceived Mitra’s alleged residence. The private respondents additionally claim that the
quantum of evidence necessary to overturn the findings of the COMELEC should be clear and
convincing evidence, which level of evidence does not obtain in the present case.
The assailed COMELEC ruling speaks for itself on the matter of the standards the COMELEC
used. We found that the COMELEC plainly used a subjective non-legal standard in its
analysis and thereby, the COMELEC used wrong considerations in arriving at the conclusion
that Mitra’s residence at the Maligaya Feedmill is not the residence contemplated by law.
We reiterate that the COMELEC based its ruling that Mitra did not take up residence in
Aborlan largely on the photographs of Mitra’s Aborlan premises; it concluded that the
photographed premises could not have been a residence because of its assessment of the
interior design and furnishings of the room. Thus, the COMELEC Second Division’s
Resolution (which the COMELEC en banc fully supported) did not merely conclude that Mitra
does not live in the photographed premises; more than this, it ruled that these premises
cannot be considered a home or a residence, for lack of the qualities of a home that the
Second Division wanted to see. To quote:
The pictures presented by Mitra of his supposed "residence" are telling. The said pictures
show a small, sparsely furnished room which is evidently unlived in and which is located on
the second floor of a structure that appears like a factory or a warehouse. These pictures
likewise show that the "residence" appears hastily set-up, cold, and utterly devoid of any
[personality] which would have imprinted Mitra’s personality thereto such as old family
photographs and memorabilia collected through the years. In fact, an appreciation of Mitra’s
supposed "residence" raises doubts whether or not he indeed lives there. Verily, what is
lacking therein are the loving attention and details inherent in every home to make it one’s
residence. Perhaps, at most, and to this Commission’s mind, this small room could have
served as Mitra’s resting area whenever he visited the said locality but nothing more.
This observation coupled with the numerous statements from former employees and
customers of Maligaya Feed Mill and Farm that Mitra’s residence is located in an unsavory
location, considering the noise and pollution of being in a factory area, and that the same, in
fact, had been Maligaya Feed Mill’s office just a few months back, militates against Mitra’s
claim that the same has been his residence since early 2008. These information make it clear
to this Commission that this room is not a home.13
Thus presented, the COMELEC’s requirement of what should be considered a "residence"
cannot but be a highly subjective one that finds no basis in law, in jurisprudence, or even in
fact.
Third, we cannot likewise agree with the private respondents’ theory that the quantum of
evidence necessary to overturn the factual findings of the COMELEC should be clear and
convincing evidence, as it misappreciates that we nullified the COMELEC’s findings because
it used the wrong considerations in arriving at its conclusions.
The private respondents fail to realize that the important considerations in the present case
relate to questions bearing on the cancellation of the COC that they prayed for; the main
critical points are the alleged deliberate misrepresentation by Mitra and the underlying
question of his residency in Aborlan, Palawan.
While it is undisputed that Mitra’s domicile of origin is Puerto Princesa City, Mitra adequately
proved by substantial evidence that he transferred by incremental process to Aborlan
beginning 2008, and concluded his transfer in early 2009. As our Decision discussed and as
repeated elsewhere in this Resolution, the private respondents failed to establish by
sufficiently convincing evidence that Mitra did not effectively transfer, while the COMELEC not
only grossly misread the evidence but even used the wrong considerations in appreciating the
submitted evidence.
To convince us of their point of view, the private respondents point out that we (1) totally
disregarded the other evidence they submitted, which the COMELEC, on the other hand,
properly considered; (2) disregarded the import of the effectivity of the lease contract, which
showed that it was only effective until February 28, 2010; and (3) disregarded the evidence
showing that Mitra failed to abandon his domicile of origin.
These issues are not new issues; we extensively and thoroughly considered and resolved
them in our July 2, 2010 Decision. At this point, we only need to address some of the private
respondents’ misleading points in order to clear the air.
1. The private respondents’ reliance on the expiration date of the lease contract, to
disprove Mitra’s claim that the room at the Maligaya Feedmill is his residence, is
misplaced. This argument is flimsy since the contract did not provide that it was
completely and fully time-barred and was only up to February 28, 2010; it was
renewable at the option of the parties. That a lease is fixed for a one-year term is a
common practice. What is important is that it is renewable at the option of the
parties. In the absence of any objection from the parties, the lease contract simply
continues and is deemed renewed.14
2. In an attempt to show that Mitra considers himself a resident of Puerto Princesa
City, the private respondents submitted in their Motion for Reconsideration a colored
certified true copy of Mitra’s alleged Puerto Princesa City Community Tax Certificate
(CTC) dated February 3, 200915 allegedly showing Mitra’s signature. To recall, we
found that based on the records before us, the purported February 3, 2009 CTC did
not bear the signature of Mitra. Although the private respondents have belatedly
filed this evidence, we carefully examined the recently submitted colored copy of the
February 3, 2009 CTC and saw no reason to reverse our finding; the "alleged
signature" appears to us to be a mere hazy "superimposition" that does not bear any
resemblance at all to Mitra’s signature. We, thus, stand by our ruling that the
February 3, 2009 CTC, if at all, carries very little evidentiary value. It did it not at all
carry Mitra’s signature; his secretary’s positive testimony that she secured the CTC
for Mitra, without the latter’s participation and knowledge, still stands unrefuted.
3. The private respondents likewise belatedly submitted a Certification, dated July
17, 2010,16 from the Municipal Agriculturist of Aborlan, stating that its office does not
have any record of the supposed pineapple plantation in Barangay Isaub, Aborlan,
Palawan. This late submission was made to show that Mitra has no established
business interests in Aborlan. The Certification pertinently states:
This is to certify that as of this date, there is no existing records/registration in our
office regarding the alleged pineapple plantation in Barangay Isaub, Aborlan,
Palawan. However, the Office of the Municipal Agriculturist is on the process of
gathering data on the Master list of Farmers engaged in growing High Value
Commercial Crops in Aborlan.
This certification is issued to MR. BENJAMIN KATON a resident in Penida
Subdivision, Puerto Princesa City for whatever legal purposes may serve him best.
We cannot give any evidentiary value to this submission for two reasons. First, it
was filed only on reconsideration stage and was not an evidence before us when
the case was submitted for resolution. Second, even if it had not been filed late, the
Certification does not prove anything; it is, on its face, contradictory. On the one
hand, it categorically states that there are no existing records of any pineapple
plantation in Barangay Isaub, Aborlan, Palawan; on the other hand, it also expressly
states that its records are not yet complete since it is "on the process of gathering
data on the Master list of Farmers engaged in growing High Value Commercial
Crops in Aborlan."17 Under what law or regulation the certifying office has the
obligation to prepare a list of agricultural business interests in Aborlan has not even
been alleged.
At the risk of repetition, we reiterate that Mitra’s business interests in Aborlan stand
undisputed in the present case. Not only was Mitra able to present photographs of
his experimental pineapple plantation; his claim of ownership was also corroborated
by the statements of Dr. Carme Caspe, Ricardo Temple and other witnesses.
4. The private respondents also claim that the Court erred in ruling that Mitra did not
commit any deliberate material misrepresentation in his COC. We likewise see no
merit in this claim. One important point in the present case is that the private
respondents failed to prove that there was deliberate material misrepresentation in
Mitra’s statement on his required residency prior to the May 10, 2010 elections.
This, as we stressed in our Decision, is a glaring gap in the private respondents’
case:
We do not believe that he committed any deliberate misrepresentation given what he knew of
his transfer, as shown by the moves he had made to carry it out. From the evidentiary
perspective, we hold that the evidence confirming residence in Aborlan decidedly tilts in
Mitra’s favor; even assuming the worst for Mitra, the evidence in his favor cannot go below the
level of an equipoise, i.e., when weighed, Mitra’s evidence of transfer and residence in
Aborlan cannot be overcome by the respondents’ evidence that he remained a Puerto
Princesa City resident. Under the situation prevailing when Mitra filed his COC, we cannot
conclude that Mitra committed any misrepresentation, much less a deliberate one, about his
residence.
The character of Mitra’s representation before the COMELEC is an aspect of the case that the
COMELEC completely failed to consider as it focused mainly on the character of Mitra’s
feedmill residence. For this reason, the COMELEC was led into error – one that goes beyond
an ordinary error of judgment. By failing to take into account whether there had been a
deliberate misrepresentation in Mitra’s COC, the COMELEC committed the grave abuse of
simply assuming that an error in the COC was necessarily a deliberate falsity in a material
representation. In this case, it doubly erred because there was no falsity; as the carefully
considered evidence shows, Mitra did indeed transfer his residence within the period required
by Section 74 of the OEC.
The respondents significantly ask us in this case to adopt the same faulty approach of using
subjective norms, as they now argue that given his stature as a member of the prominent
Mitra clan of Palawan, and as a three term congressman, it is highly incredible that a small
room in a feed mill has served as his residence since 2008.
We reject this suggested approach outright for the same reason we condemned the
COMELEC’s use of subjective non-legal standards. Mitra’s feed mill dwelling cannot be
considered in isolation and separately from the circumstances of his transfer of residence,
specifically, his expressed intent to transfer to a residence outside of Puerto Princesa City to
make him eligible to run for a provincial position; his preparatory moves starting in early 2008;
his initial transfer through a leased dwelling; the purchase of a lot for his permanent home;
and the construction of a house in this lot that, parenthetically, is adjacent to the premises he
leased pending the completion of his house. These incremental moves do not offend reason
at all, in the way that the COMELEC’s highly subjective non-legal standards do.
Thus, we can only conclude, in the context of the cancellation proceeding before us, that the
respondents have not presented a convincing case sufficient to overcome Mitra’s evidence of
effective transfer to and residence in Aborlan and the validity of his representation on this
point in his COC, while the COMELEC could not even present any legally acceptable basis to
conclude that Mitra’s statement in his COC regarding his residence was a
misrepresentation.18
5. The private respondents submit that the Court erred in relying on jurisprudence (Torayno,
Sr. v. COMELEC19 and Asistio v. Hon. Trinidad Pe-Aguirre20) not applicable to the present
case. They additionally argue that our ruling in Velasco v. COMELEC21 should be applied
strictly to the present case.
These submissions are wrong, as they do not consider the purposes and the specific points of
law for which we cited these cases. Torayno, Asistio and Velasco, read in their proper
perspective, fully support our findings and conclusions in this case.
While Torayno does not share the exact factual situation in the present case, we cited the
case to illustrate that it is not unknown in this jurisdiction to have a situation where a
candidate, due to legal developments (such as reclassification of a component city to a highly
urbanized city), is compelled to transfer residence to allow him to continue his or her public
service in another political unit that he or she cannot legally access as a candidate, without a
change of residence. In the present case, as in Torayno, Mitra would not have had any legal
obstacle to his gubernatorial bid were it not for the reclassification of Puerto Princesa City
from a component city to a highly urbanized city. The adjustment he had to make was solely in
his residence, as he already had, as a Puerto Princesa City resident, knowledge of and
sensitivity to the needs of the Palawan electorate.
The factual antecedents of Asistio are likewise not exactly the same as the facts of the
present case, but the Court’s treatment of the COC inaccuracies in Asistio fully supports our
conclusion that Mitra has established his Aborlan domicile. In Asistio, we held that Asistio’s
mistake in his residency statement in his COC "is not sufficient proof that he has abandoned
his domicile in Caloocan City, or that he has established residence outside of Caloocan
City."22In the present case, Mitra did not commit any inaccuracies in his COC. In fact, any
inaccuracy there may have been was committed by third persons on documents (such as the
building permit, contract of sale of the Temple property, and his CTC) that do not have any
bearing on his candidacy. Under these circumstances, we would apply a harsher rule to Mitra
if we conclude that he has not established his Aborlan domicile.
Our July 2, 2010 Decision finds commonality with our ruling in Velasco in the recognition, in
both cases, of the rule of law. But as we explained in our Decision, the similarity ends there as
the facts to which the law was applied differed. We thus ruled:
These cases are to be distinguished from the case of Velasco v. COMELEC where the
COMELEC cancelled the COC of Velasco, a mayoralty candidate, on the basis of his
undisputed knowledge, at the time he filed his COC, that his inclusion and registration as a
voter had been denied. His failure to register as a voter was a material fact that he had clearly
withheld from the COMELEC; he knew of the denial of his application to register and yet
concealed his non-voter status when he filed his COC. Thus, we affirmed the COMELEC’s
action in cancelling his COC.
If there is any similarity at all in Velasco and the present case, that similarity is in the
recognition in both cases of the rule of law. In Velasco, we recognized – based on the law –
that a basic defect existed prior to his candidacy, leading to his disqualification and the vice-
mayor-elect’s assumption to the office. In the present case, we recognize the validity of Mitra’s
COC, again on the basis of substantive and procedural law, and no occasion arises for the
vice-governor-elect to assume the gubernatorial post.23
To summarize, both the COMELEC and private respondents have not shown, through their
respective motions, sufficient reasons to compel us to modify or reverse our July 2, 2010
Decision.
Other Developments,
Issues and Rulings
In the course of the Court’s consideration of this case, a dissent was entered that contained its
own arguments on why our Decision of July 2, 2010 should be reversed. For a complete
treatment and presentation of the issues raised, the arguments in the dissent and the
refutation are discussed below, separately from the arguments the COMELEC and private
respondents themselves raised.
First, the dissent asserts that our conclusion that the private respondents’ evidence
failed to show that Mitra remained a Puerto Princesa City resident is "way off point"
since the private respondents showed, as the COMELEC has found, that Mitra
could not have stayed and resided at the mezzanine portion of the Maligaya
Feedmill located at Barangay Isaub, Aborlan, Palawan.24 In concluding that Mitra
remained to be a Puerto Princesa City resident, the dissent points to the certification
of the Punong Barangay of Sta. Monica, Puerto Princesa City attesting that Mitra
continued to reside in that barangay. The dissent also argues that the certification of
the Punong Barangay of Sta. Monica, supported by the sworn statement of
Commodore Hernandez that Mitra resides in that same barangay, deserves equal if
not greater weight than the statement of the Punong Barangay of Isaub, Aborlan;
the latter supporting statement should provide the "tilting element on the question of
Mitra’s continued residency in his domicile of origin."25
Second, the dissent faults us for not giving weight to the sworn statements of
Maligaya Feed Mill’s customers and former employees, who testified that Mitra did
not reside at the mezzanine portion of the Feed Mill. It emphasizes the undisputed
point that the room at the mezzanine neither has the usual comfort room nor a
kitchen area. Additionally, it argues that we conveniently failed to cite any statutory
standard with respect to the determination of whether Mitra’s alleged residence
constitutes a "residence" as defined by law.26
 Third, the dissent submits that we gravely erred "in giving credence to Mitra’s
gratuitous claims of business interests in Aborlan Palawan" to justify our finding that
"Mitra’s transfer of residence was accomplished not in one single move but, through
an incremental process."27 It notes that Mitra failed to submit material proofs to
prove his substantial business interests in Aborlan, Palawan, such as but not limited
to - "government issued permits or licenses, tax declarations, or real estate tax
payments, property leases and proofs of commercial transactions." 28 The dissent
concludes that the suppression of material evidence, which, could directly prove the
existence and ownership of the pineapple plantation should be taken against Mitra
who claims ownership and existence of these businesses.29
Fourth, the dissent argues that we erred in unduly relying on the "dubious" lease
contract for being ante-dated. It stresses that the ponencia unreasonably gave
credence to the lease contract despite "indicators" of its invalidity, which should
have forewarned the Court that the same is not what it purports to be.30 It also adds
that our justification that the lease contract by law may be impliedly renewed from
month to month lacks factual basis, since Mitra himself, in his Motion for
Reconsideration dated February 13, 2010 before the COMELEC en banc, stated
that "he had moved to his own new house physically residing in his newly completed
home in Aborlan."31
Fifth, the dissent implores the Court to apply to the present case our June 15, 2010
Decision in G.R. No. 192127, Mario Joel T. Reyes v. Commission on Elections and
Antonio V. Gonzales,32 where we resolved to dismiss Reyes’ petition via a minute
resolution for failure to sufficiently show that the COMELEC gravely abused its
discretion in cancelling Reyes’ COC for his deliberate misrepresentation on his
transfer and establishment of a new residence in Aborlan, Palawan.
Finally, the dissent submits that the mere fact that Mitra won in the May 10, 2010
gubernatorial elections cannot disregard the mandatory one-year residency
requirement to qualify as a gubernatorial candidate. It cites our ruling in Velasco v.
Commission on Elections,33 where we ruled that the provisions on material
qualifications of elected official should always prevail over the will of the electorate
in any given locality; to rule otherwise, would be "to slowly gnaw at the rule of law."
These arguments are addressed in the same order they are posed under the topical headings
below.
The private respondents failed to establish by sufficiently convincing evidence that Mitra
remained a Puerto Princesa City resident.
The evidence before us, properly considered and carefully reviewed, fully supports our
conclusion that the private respondents’ evidence failed to show that Mitra remained a Puerto
Princesa City resident. As discussed now and in our Decision of July 2, 2010, Mitra
adequately proved by substantial evidence that he transferred by incremental process to
Aborlan beginning 2008, concluding his transfer in early 2009. Given this proof, the burden of
evidence lies with the private respondents to establish the contrary.
Proof to the contrary is sadly lacking, as the dissent’s reliance on the Certification of the
Punong Barangay of Sta. Monica, Puerto Princesa City is misplaced. The ponencia cannot
give full evidentiary weight to the aforementioned Certification which simply stated -
This is to CERTIFY that ABRAHAM KAHLIL B. MITRA, is a bonafide resident of
Purok El Rancho this (sic) Barangay.
CERTIFIES FURTHER, that on February 3, 2009, he secure (sic) community tax certificate in
this Barangay with CTC No. 16657723.34
To be sure, a bare certification – in a disputed situation – cannot suffice to conclusively
establish the existence of what the certification alleged. The purported CTC, on the other
hand, was neither signed nor thumb-marked by Mitra and, thus, bore no clear indication that it
had been adopted and used by Mitra as his own. In our evaluation, we in fact pointedly
emphasized that the Puerto Princesa City CTC dated February 3, 2009, if at all, carries little
evidentiary value in light of Lilia Camora’s (Mitra’s secretary) positive declaration that she was
the one who procured it, while Mitra’s Aborlan CTC dated March 18, 2009 carried Mitra’s own
signature. Camora fully explained the circumstances under which she secured the CTC of
February 3, 2009 and her statement was never disputed.
On the other hand, Commodore Hernandez’ declaration on its face did not controvert Carme
E. Caspe’s sworn statement which adequately proved that Mitra’s transfer to Aborlan was
accomplished, not in a single move, but through an incremental process that started in early
2008 and concluded in March 2009. Thus, we emphasized in our Decision:
A sworn statement that has no counterpart in the respondents’ evidence in so far as it
provides details (particularly when read with the statement of Ricardo Temple) is Carme
Caspe’s statement on how Mitra’s transfer of residence took place. Read together, these
statements attest that the transfer was accomplished, not in one single move but, through an
incremental process that started in early 2008 and was in place by March 2009, although the
house Mitra intended to be his permanent home was not yet then completed.35
The COMELEC committed grave abuse of discretion in the appreciation of the evidence and
in using wrong considerations which lead it to incorrectly conclude that Mitra is not a resident
of Aborlan and that he committed a deliberate misrepresentation in his COC.
Contrary to the dissent’s view, the sworn statements of Maligaya Feedmill’s customers and
former employees that Mitra did not and could not have resided at the mezzanine portion of
the Feedmill cannot be given full evidentiary weight, since these statements are in nature of
negative testimonies that do not deserve weight and credence in the face of contrary positive
evidence, particularly, Carme E. Caspe’s testimony, cited above, that Mitra did indeed transfer
residence in a process that was accomplished, not in a single move, but through an
incremental process that started in early 2008. It is well-settled in the rules of evidence that
positive testimony is stronger than negative testimony.36
Additionally, we noted in our Decision that the COMELEC committed grave abuse of
discretion, as it failed to correctly appreciate that the evidence clearly pointed to fact that Mitra
effectively transferred his residence to Aborlan, viz:
Specifically, it was lost on the COMELEC majority (but not on the Dissent) that Mitra made
definite, although incremental transfer moves, as shown by the undisputed business interests
he has established in Aborlan in 2008; by lease of a dwelling he established his base; by the
purchase of a lot for his permanent home; by his transfer of registration as a voter in March
2009; and by the construction of a house all viewed against the backdrop of a bachelor
Representative who spent most of his working hours in Manila, who had a whole
congressional district to take care of, and who was establishing at the same time his
significant presence in the whole Province of Palawan.37
The dissent’s observation that the ponencia conveniently failed to cite any statutory standard
with respect to the determination of whether Mitra’s alleged residence constitutes a
"residence" as defined by law is simply not true.38Our July 2, 2019 Decision was particularly
sensitive to the matter of standards, as we noted that the COMELEC used personal and
subjective standards in its assessment of Mitra’s dwelling when, in fact, the law is replete with
standards, i.e., the dwelling must be where a person permanently intends to return and to
remain. Thus, we held:
In considering the residency issue, the COMELEC practically focused solely on its
consideration of Mitra’s residence at Maligaya Feedmill, on the basis of mere photographs of
the premises. In the COMELEC’s view (expressly voiced out by the Division and fully
concurred in by the En Banc), the Maligaya Feedmill building could not have been Mitra’s
residence because it is cold and utterly devoid of any indication of Mitra’s personality and that
it lacks loving attention and details inherent in every home to make it one’s residence. This
was the main reason that the COMELEC relied upon for its conclusion.
Such assessment, in our view, based on the interior design and furnishings of a dwelling as
shown by and examined only through photographs, is far from reasonable; the COMELEC
thereby determined the fitness of a dwelling as a person’s residence based solely on very
personal and subjective assessment standards when the law is replete with standards that
can be used. Where a dwelling qualifies as a residence – i.e., the dwelling where a person
permanently intends to return to and to remain – his or her capacity or inclination to decorate
the place, or the lack of it, is immaterial.39
To buttress our finding that the COMELEC used personal and subjective assessment
standards instead of the standards prescribed by law, we cited Coquilla v. COMELEC,40 which
characterized the term residence as referring to "domicile" or legal residence, that is "the
place where a party actually or constructively has his permanent home, where he, no matter
where he may be found at any given time, eventually intends to return and remain (animus
manendi).
Mitra’s business interests in Aborlan remain undisputed and are supported by the evidence on
record.
The dissent’s view that Mitra’s business interests are not supported by the evidence on record
is not accurate. As discussed above and in our July 2, 2010 Decision, Mitra’s business
interests in Aborlan stand undisputed in the present case. On the one hand, the private
respondents failed to present any iota of evidence to disprove Mitra’s claims that he had
significant investments in Aborlan, such as the expiremental pineapple plantation, farm,
farmhouse and cock farm.
On the other hand, Mitra submitted photographs41 of his experimental pineapple plantation,
farm, farmhouse and cock farm to prove his business interests in Aborlan. Carme E. Caspe’s
and Ricardo Temple’s statements also corroborated Mitra’s claim that he owns the pineapple
plantation which is located in a property near the Maligaya Feedmill. In this regard, Carme E.
Caspe’s sworn statement pertinently declared:
3. Since 2001, Congressman Mitra has been frequently visiting my farm and we
often meet at the Maligaya Feedmill and Farm located along National Hi-way, Sitio
Maligaya, Barangay Isaub, Aborlan, Palawan.
4. Sometime in January 2008, Congressman Mitra together with his brother Ramon
B. Mitra and his Chief of Staff, Atty. Winston T. Gonzales and some of their friends
started an experimental pineapple growing project in a rented farmland located near
the Maligaya Feedmill and Farm.
5. At about the time that they started the pineapple project, Congressman Mitra and
Ramon Mitra would from time to time stay overnight in the residential portion of
Maligaya Feedmill located along National Hi-way, Sitio Maligaya, Barangay Isaub,
Aborlan, Palawan.
6. Sometime in February 2008, inasmuch as Congressman Abraham Kahlil B. Mitra
and Ramon B. Mitra would want to permanently stay in Aborlan, as Congressman
Mitra would want to be nearer and have easier access to the entire 2st
Congressional District and as they intend to invest in a chicken layer venture in
Aborlan in addition to their pineapple project, we ented onto a contract of lease
covering the residential portion of the Maligaya Feedmill as their residence, a
chicken layer house and a growing house for chickens. We also agreed that
Congressman Mitra has the option to purchase a portion of the Feedmill where he
can erect or contruct his own house if he so desires later.
7. Congressman Mitra, pursuant to our agreement, immediately renovated and
refurbished the residential part in a portion of the Feedmill and as of March 2008 he
 started to occupy and reside in the said premises bringing with him some of his
personal belongings, clothes and other personal effects.
10. That in January 2009, Congressman Mitra decided to purchase a nearby
farmland located behind the Deaf School where he intends to contruct his residential
house and farm. However, as he needed time to consummate the sale of the
property and to construct his house thereon, we agreed to renew the lease for
another year effective February 2, 2009 to February 28, 2010 consisting of, among
others, a residential portion of the Maligaya Feedmill.
11. Sometime in May 2009, Congressman Mitra caused the construction of a house
and established a game fowl/fighting cock farm in the lot that he purchased but he
continued to reside in the Maligaya Feedmill up to the present.42
The photographs of the experimental pineapple plantation, farm, farmhouse and cock farm,
coupled with the sworn statements of Carme E. Caspe and Ricardo Temple, substantially
prove the existence of Mitra’s business interests in Aborlan. Thus, Mitra’s failure to submit
permits or licenses, tax declarations, real estate tax payments and other proofs of commercial
transactions does not negate the fact that he has substantial business interests in Aborlan as
he claims.
Incidentally, the dissent’s invocation of the adverse presumption of suppression of
evidence43 is erroneous, since it does not arise when the evidence is at the disposal of both
parties. 44 In the present case, the required proofs of commercial transactions the dissent cites
are public documents which are at the disposal of both parties; they are not solely under the
custody of Mitra and can be easily obtained from the municipal offices of Aborlan had the
private respondents been minded to do so. The bottom line is that no such evidence was ever
presented in this case, and none can and should be considered at this point.
The validity or invalidity
of the lease contract is not determinative of question of Mitra’s residence in Aborlan.
Beyond the arguments raised about the invalidity of the lease contract, what is significant for
purposes of this case is the immateriality of the issue to the present case. As we emphasized
in our Decision:
The validity of the lease contract, however, is not the issue before us; what concerns us is the
question of whether Mitra did indeed enter into an agreement for the lease, or strictly for the
use, of the Maligaya Feedmill as his residence (while his house, on the lot he bought, was
under construction) and whether he indeed resided there. The notary’s compliance with the
notarial law likewise assumes no materiality as it is a defect not imputable to Mitra; what is
important is the parties’ affirmation before a notary public of the contract’s genuineness and
due execution.45
The dissent’s thesis – that Mitra’s allegation in his Motion for Reconsideration (dated February
13, 2010) before the COMELEC en banc that he had already transferred to the newly
constructed house in Aborlan negates the proposition that the lease agreement is extendible
from month to month - is misleading. The significance of Mitra’s statement in his Motion for
Reconsideration that he had already transferred to his newly constructed house in Aborlan
must not be read in isolation; it must be appreciated under the backdrop of Mitra’s explicit
intention to make Aborlan his permanent residence through an incremental transfer of
residence, as evidenced by the following:
(1) his initial transfer through the leased dwelling at the mezzanine portion of the
Maligaya Feedmill;
(2) the purchase of a lot for his permanent home; and
(3) the construction of a house on this lot which is adjacent to the premises he was
leasing pending the completion of his house.
All these should of course be read with the establishment of Mitra’s business interest in
Aborlan and his transfer of registration as a voter.
Reyes v. Commission on Elections is not applicable in the present case.
In invoking the applicability of our June 15, 2010 ruling in Reyes v. Commission on Elections,
the dissent cites the "explanatory note" penned by Justice Conchita Carpio-Morales
recommending the dismissal of Reyes’ petition. The explanatory note states:
To successfully effect a change of domicile, one must demonstrate (1) actual removal or
change of domicile; (2) a bona fide intention of abandoning the former place of residence and
establishing a new one; and (3) definite acts which correspond with the purpose.
Public respondent committed no grave abuse of discretion in finding that the petitioner had not
sufficiently established a change of his domicile from Coron, Palawan, his domicile of origin, to
Aborlan, Palawan, his supposed domicile of choice, for failure to show, among others things,
(1) actual presence at Aborlan, Palawan, and (2) abandonment of his residence at Coron,
Palawan. It thus correctly relied on the Court’s pronouncement in Dumpit-Michelena v. Boado
that without clear and positive proof of the concurrence of the requirements for a change of
domicile, the domicile of origin continues.
Reading Section 78 of the Omnibus Election Code with the constitutional qualifications for a
Member of the House of Representatives, petitioner’s false representation in his COC
regarding his residence, which affects his qualifications, gave cause for the COMELEC to
cancel the same.46
On June 15, 2010, the Court issued a Minute Resolution dismissing Reyes’ petition, which
states:
The Court Resolved to DISMISS the petition for failure thereof to sufficiently show that any
grave abuse of discretion was committed by the Commission on Elections in rendering the
challenged resolutions which, on the contrary, appear to be in accord with the facts and
applicable law and jurisprudence.47
This Resolution found no grave abuse of discretion and upheld the March 25, 2010 Resolution
of the COMELEC Second Division48 and May 7, 2010 Resolution of the COMELEC en
banc.49 In this March 25, 2010 Resolution, the COMELEC Second Division found:
An evaluation, however, of the evidence presented by the parties vis-à-vis the three
requirements for a successful change of domicile would show that the petitioner is correct.
First, the alleged residence of respondent is a mere beach house or a lodging house with a
roof made of pawid as shown in the Declaration of Real Property of Clara Espiritu Reyes, the
wife of the respondent. This description of the property is confirmed by two photographs
attached to the Memorandum of the petitioner. By its very nature, a beach house is a mere
temporary abode, a lodging house where people stay merely as transients. It is not meant to
be a permanent place to live in. As the Supreme Court declared in Dumpit Michelena v.
Boado, a beach house is at most a place of temporary relaxation and it can hardly be
considered a place of residence. With this kind of property, it can scarcely be said that
respondent has the intention of remaining there permanently or for an indefinite period of time.
Second, respondent has failed to show actual presence at his domicile of choice. Respondent
himself admitted that he goes only to Aborlan whenever he gets reprieves from work as most
of the time he stays at Puerto Princesa City, where he also resides with his wife. His
witnesses also confirm this saying that all Palaweños know that the office of the governor is at
the capitol of Puerto Princesa City, where respondent and his wife stay if there is work at the
office. However, considering that Aborlan is only about an hour’s away from Puerto Princesa,
it is odd that respondent and his wife never go home to Aborlan after office hours if he
intended to establish his domicile of choice in the said municipality. It is also unusual that
respondent’s wife still stays at Puerto Princesa City while she works as manager of Palawan
Agricultural and Animal Husbandy Corporation, which is based in Aborlan. This conduct is not
indicative of an intent to establish their domicile at Aborlan.
Third, respondent failed to show that he already cut his ties with Coron, Palawan as his
domicle. Although respondent declared that as early as 2008, he has already transferred his
domicile at Aborlan, still he secured his Community Tax Certificate (CTC) for the year 2009 at
Coron.
Respondent tried to wiggle out from this tight spot by explaining that it was secured by his
secretary, who through force of habit inadvertently got it for him. However, such explanation
proved futile when respondent was confronted with the fact that he still used the said CTC in
establishing his identity when he signed a Special Power of Attorney on January 12, 2009 and
when he signed a contract in behalf of the Palawan Provincial Government on August 10,
2009 even when he has supposedly secured another CTC from Aborlan on April 7, 2009.
Thus, even in August of 2009, less than a year prior to the May 10, 2010 election, respondent
still portrayed himself as a resident of Coron. The intention then to abandon the said place as
his domicile is wanting.
Based on the foregoing discussions alone, it is at once apparent the three-point requirements
for the abandonment of a domicile and the establishment of a new one do not concur in the
case of the respondent.50
Contrary to the dissent’s view, no parallelism can be drawn between this ruling and the
present case, so that this ruling cannot apply to the latter.
First, the dissent’s citation of Justice Carpio-Morales’ explanatory note recommending the
dismissal of Reyes’ petition cannot be considered a precedent that should be made applicable
to the present case. The explanatory note, while reflective of the Court’s thinking, is not a
decision nor an opinion of the Court. It remains what its description connotes – an explanatory
note provided by one Justice and approved by the Court – and nothing more; what binds the
Court is its pronouncement that no grave abuse of discretion transpired in the COMELEC’s
consideration of the case. Under this legal situation, what assumes significance are the
COMELEC Resolutions that the Court effectively upheld when it issued the June 15, 2010
Minute Resolution dismissing Reyes’ petition.
Second, the factual circumstances in Reyes are entirely different from the present case; no
parallelism can be drawn so that the application of the ruling in Reyes cannot be bodily lifted
and applied to Mitra. In Reyes, the COMELEC ruled that Reyes committed a material
misrepresentation in his COC when he declared that his residence is Tigman, Aborlan,
Palawan and that he is eligible for the office he seeks to be elected to. The COMELEC so
concluded after it found that the evidence showed that Reyes failed to prove that (1) he had
the intention to remain permanently in Aborlan since his alleged residence is a mere beach
house which by its very nature is a temporary place of residence as held by the Court in
Dumpit Michelana v. Boado;51 2) he had actual presence at his domicile of choice; and (3) that
he had already transferred from his domicile (Coron, Palawan) to Tigman, Aborlan Palawan.
The COMELEC even found, on the matter of CTC, that Reyes consistently used his Coron
CTC in his transactions, thus negating his explanation that the CTC was procured without his
knowledge and consent.
In contrast, we found in the present case that Mitra did not deliberately misrepresent his
Aborlan residence to deceive or mislead the Palawan electorate since he in fact adduced
positive evidence of transfer of residence which the private respondents failed to sufficiently
controvert. In this regard, we noted with emphasis that Mitra undertook "incremental moves"
to his new domicile in Aborlan as evidenced by the following: (1) his expressed intent to
transfer to a residence outside of Puerto Princesa City to make him eligible for a provincial
position; (2) his preparatory moves starting in early 2008; (3) the transfer of registration as a
voter in March 2009; (4) his initial transfer through a leased dwelling at Maligaya Feedmill; (5)
the purchase of a lot for his permanent home; and (6) the construction of a house on the said
lot which is adjacent to the premises he was leasing pending the completion of his
house.52 The issue regarding Mitra’s CTC, too, was satisfactorily explained and is far different
from the obtaining facts in the case of Reyes.
No occasion exists to apply the rule of the primacy of the will of people since Mitra did not
commit any deliberate misrepresentation; in fact, he proved that he transferred his residence
to Aborlan within the period required by law.
The dissent contends that Mitra’s election as Governor "did not render the present case moot
and academic or lift the statutory one-year residency requirement for him to qualify for the
gubernatorial post."53 The dissent apparently perceives Mitra’s electoral victory as a major
consideration in our Decision of July 2, 2010. Unfortunately, the dissent is mistaken in its
appreciation of the thrust of our Decision; we in fact ruled that no reason exists to appeal to
the primacy of the electorate’s will since Mitra did not commit any material misrepresentation
in his COC. We said:
We have applied in past cases the principle that the manifest will of the people as expressed
through the ballot must be given fullest effect; in case of doubt, political laws must be
interpreted to give life and spirit to the popular mandate. Thus, we have held that while
provisions relating to certificates of candidacy are in mandatory terms, it is an established rule
of interpretation as regards election laws, that mandatory provisions, requiring certain steps
before elections, will be construed as directory after the elections, to give effect to the will of
the people.
Quite recently, however, we warned against a blanket and unqualified reading and application
of this ruling, as it may carry dangerous significance to the rule of law and the integrity of our
elections. For one, such blanket/unqualified reading may provide a way around the law that
effectively negates election requirements aimed at providing the electorate with the basic
information for an informed choice about a candidate’s eligibility and fitness for office. Short of
adopting a clear cut standard, we thus made the following clarification:
Earlier, Frivaldo v. COMELEC provided the following test:
[T]his Court has repeatedly stressed the importance of giving effect to the sovereign will in
order to ensure the survival of our democracy. In any action involving the possibility of a
reversal of the popular electoral choice, this Court must exert utmost effort to resolve the
issues in a manner that would give effect to the will of the majority, for it is merely sound
public policy to cause elective offices to be filled by those who are the choice of the majority.
To successfully challenge a winning candidate's qualifications, the petitioner must clearly
demonstrate that the ineligibility is so patently antagonistic to constitutional and legal
principles that overriding such ineligibility and thereby giving effect to the apparent will of the
people would ultimately create greater prejudice to the very democratic institutions and juristic
traditions that our Constitution and laws so zealously protect and promote. [Emphasis
supplied.]
With the conclusion that Mitra did not commit any material misrepresentation in his COC, we
see no reason in this case to appeal to the primacy of the electorate’s will. We cannot deny,
however, that the people of Palawan have spoken in an election where residency qualification
had been squarely raised and their voice has erased any doubt about their verdict on Mitra’s
qualifications.54
Under these terms, we cannot be any clearer.
WHEREFORE, premises considered, we resolve to DENY with FINALITY, for lack of merit,
the motions for reconsideration and motion for oral arguments now before us. Let entry of
judgment be made in due course.
SO ORDERED.
ARTURO D. BRION
Associate Justice

We distinguish our ruling in this case from others that we have made in the past by the
clarification that COC defects beyond matters of form and that involve material
misrepresentations cannot avail of the benefit of our ruling that COC mandatory requirements
before elections are considered merely directory after the people shall have spoken. A
mandatory and material election law requirement involves more than the will of the people in
any given locality. Where a material COC misrepresentation under oath is made, thereby
violating both our election and criminal laws, we are faced as well with an assault on the will of
the people of the Philippines as expressed in our laws. In a choice between provisions on
material qualifications of elected officials, on the one hand, and the will of the electorate in any
given locality, on the other, we believe and so hold that we cannot choose the electorate will.
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 150605 December 10, 2002
EUFROCINO M. CODILLA, SR., petitioner,
vs.
HON. JOSE DE VENECIA, ROBERTO P. NAZARENO, in their official capacities as
Speaker
and Secretary-General of the House of Representatives, respectively,
and MA. VICTORIA L. LOCSIN, respondents.
DECISION
PUNO, J.:
In a democracy, the first self-evident principle is that he who has been rejected by the people
cannot represent the people. Respondent Ma. Victoria L. Locsin lost to petitioner Eufrocino M.
Codilla, Sr. by 17,903 votes in the May 14, 2001 elections as Representative of the 4th
legislative district of Leyte. The most sophisticated legal alchemy cannot justify her insistence
that she should continue governing the people of Leyte against their will. The enforcement of
the sovereign will of the people is not subject to the discretion of any official of the land.
This is a Petition for Mandamus and Quo Warranto directed against respondents Speaker
Jose De Venecia and Secretary-General Roberto P. Nazareno of the House of
Representatives to compel them to implement the decision of the Commission on Elections en
banc by (a) administering the oath of office to petitioner as the duly-elected Representative of
the 4th legislative district of Leyte, and (b) registering the name of the petitioner in the Roll of
Members of the House of Representatives, and against respondent Ma. Victoria L. Locsin for
usurping, intruding into, and unlawfully holding and exercising the said public office on the
basis of a void proclamation.
The facts are uncontroverted. Petitioner and respondent Locsin were candidates for the
position of Representative of the 4th legislative district of Leyte during the May 14, 2001
elections. At that time, petitioner was the Mayor of Ormoc City while respondent Locsin was
the sitting Representative of the 4th legislative district of Leyte. On May 8, 2001, one
Josephine de la Cruz, a registered voter of Kananga, Leyte, filed directly with the COMELEC
main office a Petition for Disqualification1 against the petitioner for indirectly soliciting votes
from the registered voters of Kananga and Matag-ob, Leyte, in violation of Section 68 (a) of
the Omnibus Election Code. It was alleged that the petitioner used the equipments and
vehicles owned by the City Government of Ormoc to extract, haul and distribute gravel and
sand to the residents of Kananga and Matag-ob, Leyte, for the purpose of inducing,
influencing or corrupting them to vote for him. Attached to the petition are the (a) Affidavits of
Basilio Bates,2 Danilo D. Maglasang,3 Cesar A. Laurente;4 (b) Joint Affidavit of Agripino C.
Alferez and Rogelio T. Salvera;5 (c) Extract Records from the Police Blotter executed by
Police Superintendent Elson G. Pecho;6 and (d) Photographs showing government dump
trucks, haulers and surfacers and portions of public roads allegedly filled-in and surfaced
through the intercession of the respondent.7 The case was docketed as SPA No. 01-208 and
assigned to the COMELEC's Second Division.
On May 10, 2001, the COMELEC Second Division issued an Order delegating the hearing
and reception of evidence on the disqualification case to the Office of the Regional Director of
Region VIII.8 On May 11, 2001, the COMELEC Second Division sent a telegram informing the
petitioner that a disqualification case was filed against him and that the petition was remanded
to the Regional Election Director for investigation.9
At the time of the elections on May 14, 2001, the Regional Election Director had yet to
hear the disqualification case. Consequently, petitioner was included in the list of
candidates for district representative and was voted for. The initial results showed that
petitioner was the winning candidate.
On May 16, 2001, before the counting could be finished, respondent Locsin joined as
intervenor in SPA No. 128 and filed a "Most Urgent Motion to Suspend Proclamation of
Respondent [herein petitioner]" with the COMELEC Second Division.10 Respondent Locsin
alleged that "the evidence on record against respondent is very strong and unless rebutted
remains." She urged the Commission to set the hearing of the disqualification case and
prayed for the suspension of the proclamation of the respondent "so as not to render the
present disqualification case moot and academic." A copy of the Motion was allegedly
served on petitioner by registered mail but no registry receipt was attached thereto.11
On May 18, 2001, respondent Locsin filed a "Second Most Urgent Motion to Suspend
Proclamation of Respondent" stating "there is clear and convincing evidence showing that
the respondent is undoubtedly guilty of the charges against him and this remains unrebutted
by the respondent." A copy of the Motion was sent to the petitioner and the corresponding
registry receipt was attached to the pleading.12 The records, however, do not show the date
the petitioner received the motion.
On the same day, May 18, 2001, the COMELEC Second Division issued an Ex-Parte
Order13 directing the Provincial Board of Canvassers of Leyte to suspend the proclamation of
petitioner in case he obtains the highest number of votes by reason of "the seriousness of the
allegations in the petition for disqualification."14 It also directed the Regional Election Director
to speed up the reception of evidence and to forward immediately the complete records
together with its recommendation to the Office of the Clerk of the Commission.15 As a result,
petitioner was not proclaimed as winner even though the final election results showed that he
garnered 71,350 votes as against respondent Locsin's 53,447 votes.16
At the time that the COMELEC Second Division issued its Order suspending his proclamation,
the petitioner has yet to be summoned to answer the petition for disqualification. Neither has
said petition been set for hearing. It was only on May 24, 2001 that petitioner was able to file
an Answer to the petition for his disqualification with the Regional Election Director, alleging
that: (a) he has not received the summons together with the copy of the petition; (b) he
became aware of the matter only by virtue of the telegram sent by the COMELEC Second
Division informing him that a petition was filed against him and that the Regional Election
Director was directed to investigate and receive evidence therewith; and (c) he obtained a
copy of the petition from the COMELEC Regional Office No. 8 at his own instance.17 Petitioner
further alleged that the maintenance, repair and rehabilitation of barangay roads in the
municipalities of Matag-ob and Kananga were undertaken without his authority, participation
or directive as City Mayor of Ormoc. He attached in his Answer the following: (a) Affidavit of
Alex B. Borinaga;18 (b) Copy of the Excerpt from the Minutes of the Regular Session of
Barangay Monterico;19 (c) Affidavit of Wilfredo A. Fiel;20 (d) Supplemental Affidavit of Wilfredo
A. Fiel;21 and (e) Affidavit of Arnel Y. Padayao.22
On May 25, 2001, petitioner filed a Motion to Lift Order of Suspension,23 alleging that (a) he
did not receive a copy of the Motion to Suspend his Proclamation and hence, was denied the
right to rebut and refute the allegations in the Motion; (b) that he did not receive a copy of the
summons on the petition for disqualification and after personally obtaining a copy of the
petition, filed the requisite answer only on May 24, 2001; and (c) that he received the
telegraph Order of the COMELEC Second Division suspending his proclamation only on May
22, 2001. He attached documentary evidence in support of his Motion to Lift the Suspension
of his proclamation, and requested the setting of a hearing on his Motion.24
On May 30, 2001, an oral argument was conducted on the petitioner's Motion and the parties
were ordered to submit their respective memoranda.25 On June 4, 2001, petitioner submitted
his Memorandum26 in support of his Motion assailing the suspension of his proclamation on
the grounds that: (a) he was not afforded due process; (b) the order has no legal and factual
basis; and (c) evidence of his guilt is patently inexistent for the purpose of suspending his
proclamation. He prayed that his proclamation as winning congressional candidate be
expediently made, even while the disqualification case against him continue upon due notice
and hearing. He attached the following additional evidence in his Memorandum: (a) Copy of
certification issued by PNP Senior Inspector Benjamin T. Gorre;27 (b) Certification issued by
Elena S. Aviles, City Budget Officer;28 (c) Copy of certification issued by Wilfredo A. Fiel, City
Engineer of Ormoc;29 (d) Joint Affidavit of Antonio Patenio and Pepito Restituto;30and (e)
Affidavits of Demetrio Brion,31 Igmedio Rita32 and Gerardo Monteza.33 Respondent Locsin's
memorandum also contained additional affidavits of his witnesses.34
Petitioner's Motion to Lift the Order of Suspension, however, was not resolved. Instead,
on June 14, 2001, the COMELEC Second Division promulgated its Resolution35 in SPA
No. 01-208 which found the petitioner guilty of indirect solicitation of votes and ordered
his disqualification. It directed the "immediate proclamation of the candidate who
garnered the highest number of votes xxx." A copy of said Resolution was sent by fax to
the counsel of petitioner in Cebu City in the afternoon of the following day.36
By virtue of the said Resolution, the votes cast for petitioner, totaling 71,350, were
declared stray even before said Resolution could gain finality. On June 15, 2001,
respondent Locsin was proclaimed as the duly elected Representative of the 4th legislative
district of Leyte by the Provincial Board of Canvassers of Leyte. It issued a Certificate of
Canvass of Votes and Proclamation of the Winning Candidates for Member of the House of
Representatives stating that "MA. VICTORIA LARRAZABAL LOCSIN obtained a total of
FIFTY THREE THOUSAND FOUR HUNDRED FORTY SEVEN (53,447) votes representing
the highest number of votes legally cast in the legislative district for said
office."37 Respondent Locsin took her oath of office on June 18, 2001 and assumed
office on June 30, 2001.
On June 20, 2001, petitioner seasonably filed with the COMELEC en banc a Motion for
Reconsideration38from the June 14, 2001 Resolution of the COMELEC Second Division
which ordered his disqualification, as well as an Addendum to the Motion for
Reconsideration.39 Petitioner alleged in his Motion for Reconsideration that the COMELEC
Second Division erred: (1) in disqualifying petitioner on the basis solely of the dubious
declaration of the witnesses for respondent Locsin; (2) in adopting in toto the allegations of the
witnesses for respondent Locsin; and (3) in promulgating the resolution in violation of its own
rules of procedure and in directing therein the immediate proclamation of the second highest
'vote getter.' Respondent Locsin and her co-petitioner in SPA No. 01-208 filed a joint
Opposition to the Motion for Reconsideration.40
On June 21, 2001, petitioner filed with the COMELEC en banc a Petition for Declaration of
Nullity of Proclamation,41 docketed as SPC No. 01-324, assailing the validity of the
proclamation of respondent Locsin who garnered only the second highest number of votes.
Respondent Locsin filed her Answer alleging that: (1) the Commission lost jurisdiction to hear
and decide the case because of the proclamation of Locsin and that any question on the
"election, returns, and qualification" of Locsin can only be taken cognizance of by the House
of Representatives Electoral Tribunal (HRET); (2) the case should be filed and heard in the
first instance by a Division of the Commission and not directly by the Commission en banc;
and (3) the proclamation of Locsin was valid because she received the highest number of
valid votes cast, the votes of Codilla being stray.
On June 28, 2001, petitioner filed an Urgent Manifestation42 stating that he was deprived of
a fair hearing on the disqualification case because while the documentary evidence
adduced in his Memorandum was in support of his Motion for the lifting of the
suspension of his proclamation, the COMELEC Second Division instead ruled on the
main disqualification case. In consonance with his prayer that a full-dress hearing be
conducted on the disqualification case, he submitted Affidavits of additional witnesses43 which
he claims would refute and substantially belie the allegations of petitioner's/intervenor's
witnesses. A Reply,44 Rejoinder45 and Sur-Rejoinder46were respectively filed by the parties.
Consequently, the motion for reconsideration in SPA No. 01-208 and the petition for
declaration of nullity in SPC No. 01-324 were submitted for resolution.
From the records, it appears that initially, a "Resolution" penned by Commissioner Rufino S.B.
Javier, dated July 24, 2001, was submitted to the Office of the Chairman, dismissing the
petition for declaration of nullity for lack of jurisdiction and denying the motion for
reconsideration filed by petitioner Codilla.47 Commissioners Florentino A. Tuason, Jr. and
Resurreccion Z. Borra submitted their respective dissenting opinions48 to the Javier resolution.
It bears emphasis that Commissioner Tuason, Jr. was the ponente of the Resolution of the
COMELEC Second Division which ordered the disqualification of petitioner but after
considering the additional evidence presented by the latter, he concluded that the totality of
the evidence was clearly in petitioner's favor. Equally worth mentioning is the fact that
Commissioner Ralph C. Lantion, who was the Presiding Commissioner of the Second
Division, also dissented and voted to grant Codilla's motion for reconsideration on the ground
that "[T]he people of Leyte have spoken and I respect the electorate's will. x x x." 49
On August 29, 2001, then COMELEC Chairman Alfredo L. Benipayo issued a "Vote and
Opinion and Summary of Votes" reversing the resolution of the Second Division and
declaring the proclamation of respondent Locsin as null and void. The dispositive portion
reads:
"JUDGMENT
WHEREFORE, in view of all the foregoing considerations, I concur with Commissioner
Resurreccion Z. Borra, Commissioner Florentino A. Tuason, Jr. and Commissioner Ralph C.
Lantion, in SPA No. 01-208, to GRANT the motion for reconsideration and to REVERSE the
resolution of the Commission (Second Division) promulgated on June 1, 2001, disqualifying
Codilla; and subsequently, in SPC No. 01-324, to GRANT the petition of Eufrocino M. Codilla,
Sr., and declare as null and void the proclamation of losing candidate Locsin.
Accordingly:
1. On the Motion for Reconsideration of the disqualification resolution against
Codilla, promulgated by the Commission (Second Division) on June 14, 2001 (SPA
No. 01-208), I vote:
(a) to GRANT the Motion for Reconsideration of respondent-movant
Eufrocino M. Codilla, Sr., and to REVERSE the Resolution of the
Commission (Second Division) promulgated on June 14, 2001, for
insufficiency of evidence;
(b) to lift the order of suspension of proclamation of petitioner Codilla,
issued by the Commission (Second Division) on May 18, 2001, having
been issued without hearing and without any finding that the evidence of
guilt of petitioner Codilla is strong and, thus, null and void;
(c) to nullify the order contained in the Resolution of the Commission
(Second Division) promulgated on June 14, 2001, for "(t)he immediate
proclamation of the candidate who garnered the highest number of votes,
to the exclusion of respondent" and the concurrent order for "the
Provincial Board of Canvasser (sic) of Leyte to immediately reconvene
and thereafter proclaim forthwith the candidate who obtained the highest
number of votes counting out the Respondent" the same being violative of
election laws, established jurisprudence, and resolutions of the
Commission;
(d) to nullify the ruling contained in the Resolution of the Commission
(Second Division) promulgated o June 14, 2001, that the votes of
respondent Codilla are "considered stray and invalid" said ruling being
issued on the basis of an inapplicable decision, and contrary to
established jurisprudence;
(e) to order the Provincial Board of Canvassers of Leyte, upon the finality
of this resolution, to reconvene and proclaim petitioner Codilla as the
winning candidate for Representative of the Fourth Legislative district of
Leyte to comply with its ministerial duty to proclaim the candidate who
garnered the highest number of votes in the elections for that position; and
(f) to order intervenor-oppositor Locsin, upon the finality of this resolution,
to vacate the office of Representative of the House of Representatives
representing the Fourth legislative district of Leyte and, for this purpose, to
inform the House of Representatives through the Honorable Speaker of
this resolution for its attention and guidance; and
2. On the petition for Declaration of Nullity of proclamation of respondent Ma. Victoria L.
Locsin (SPC No. 01-324), I vote:
(a) to GRANT the petition of Eufrocino M. Codilla, Sr., and declare as null and void
the proclamation of losing candidate Locsin, the proclamation being violative of
election laws, established jurisprudence, and resolutions of the Commission on
Elections;
(b) to lift the order of suspension of proclamation of petitioner Codilla, issued by the
Commission (Second Division) on May 18, 2001, in SPA No. 01-208, having been
issued without hearing and without any finding that the evidence of guilt of petitioner
Codilla is strong and, thus, null and void;
(c) to nullify the order contained in the Resolution of the Commission (Second
Division) promulgated on June 14, 2001, in SPA No. 01-208, for "(t)he immediate
proclamation of the candidate who garnered the highest number of votes, to the
exclusion of respondent" and the concurrent order for "the provincial Board of
Canvasser (sic) of Leyte to immediately reconvene and thereafter proclaim forthwith
the candidate who obtained the highest number of votes counting out the
Respondent" the same being violative of election laws, established jurisprudence,
and resolutions of the Commission;
 (d) to nullify the ruling contained in the Resolution of the Commission (Second
Division) promulgated on June 14, 2001, in SPA No. 01-208, that the votes of
respondent Codilla are "considered stray and invalid" said ruling being issued on the
basis of an inapplicable decision, and contrary to established jurisprudence;
(e) to order the provincial Board of Canvassers of Leyte, upon the finality of this
resolution, to reconvene and proclaim petitioner Codilla as the winning candidate for
Representative of the Fourth legislative district of Leyte he (sic) having garnered the
highest number of votes in the elections for the position; and
(f) to order respondent Locsin, upon the finality of this resolution, to vacate the office
of Representative of the House of Representatives representing the Fourth
Legislative district of Leyte and, for this purpose, to inform the House of
Representatives through the Honorable Speaker of this resolution for its attention
and guidance.
Summary of Votes
Considering the FOUR (4) VOTES of the Chairman and Commissioners Resurreccion Z.
Borra, Florentino A. Tuason, Jr., and Ralph C. Lantion, to grant the Motion for
Reconsideration of Codilla and reverse the disqualification Resolution of the Commission
(Second Division) in SPA No. 01-208, promulgated on June 14, 2001, and as an inevitable
consequence, in voting to grant the petition for declaration of nullity of the proclamation of Ma.
Victoria L. Locsin in SPC No. 01-324, the verdict/opinion of the Chairman and the three (3)
Commissioners taken together now stands, as it is, the MAJORITY DECISION of the
Commission En Banc in both cases; and the "Resolution" submitted by three (3)
Commissioners, namely, Commissioner Rufino S.B. Javier, Commissioner Luzviminda G.
Tancangco, and Commissioner Mehol K. Sadain, is considered, as it is, the MINORITY
DECISION of the Commission En Banc in both cases.
The MAJORTIY DECISION was arrived at after proper consultation with those who joined the
majority. The Chairman and the three (3) Commissioners comprising the majority decided that
no one will be assigned to write a Majority Decision. Instead, each one will write his own
separate opinion. Commissioners Borra, Tuason, Jr. and the undersigned Chairman
submitted separate opinions. Commissioner Lantion wrote an explanation on his vote."50
The aforequoted judgment was adopted in a "Vote of Adoption" signed by Commissioners
Ralph C. Lantion, Resurreccion Z. Borra and Florentino A. Tuason, Jr.51
Respondent Locsin did not appeal from this decision annulling her proclamation.
Instead, she filed a "Comment and Manifestation"52 with the COMELEC en banc questioning
the procedure and the manner by which the decision was issued. In addition, respondent
Locsin requested and was issued an opinion by House of Representatives Executive Director
and Chief Legal Counsel Leonardo B. Palicte III declaring that the COMELEC has no
jurisdiction to nullify the proclamation of respondent Locsin after she had taken her oath and
assumed office since it is the HRET which is the sole judge of election, returns and
qualifications of Members of the House.53Relying on this opinion, respondent Locsin submitted
a written privileged speech to the House during its regular session on September 4, 2001,
where she declared that she will not only disregard but will openly defy and disobey the
COMELEC en banc resolution ordering her to vacate her position.54
On September 6, 2001, the COMELEC en banc issued an Order55 constituting the members
of the Provincial Board of Canvassers of Leyte to implement the aforesaid decision. It likewise
ordered the Board to reconvene and "proclaim the candidate who obtained the highest
number of votes in the district, as the duly-elected Representative of the Fourth Legislative
district of Leyte, and accordingly issue a Certificate of Canvass and Proclamation of Winning
Candidate for Member of the House of Representatives x x x, based on the city/municipal
certificates of canvass submitted beforehand to the previous Provincial Board of Canvassers
of Leyte x x x."
On September 12, 2001, petitioner Codilla was proclaimed by the Provincial Board of
Canvassers as the duly-elected Representative of the 4th legislative district of Leyte,
having obtained a total of 71,350 votes representing the highest number of votes cast in the
district.56 On the same day, petitioner took his oath of office before Executive Judge Fortunito
L. Madrona of the Regional Trial Court of Ormoc City.57
On September 14, 2001, petitioner wrote the House of Representatives, thru respondent
Speaker De Venecia, informing the House of the August 29, 2001 COMELEC en banc
resolution annulling the proclamation of respondent Locsin, and proclaiming him as the duly-
elected Representative of the 4th legislative district of Leyte.58 Petitioner also served notice
that "I am assuming the duties and responsibilities as Representative of the fourth legislative
district of Leyte to which position I have been lawfully elected and proclaimed. On behalf of my
constituents, I therefore expect that all rights and privileges intended for the position of
Representative of the fourth legislative district of Leyte be accorded to me, including all
physical facilities and staff support." On the basis of this letter, a Memorandum59 dated
October 8, 2001 was issued by Legal Affairs Deputy Secretary-General Gaudencio A.
Mendoza, Jr., for Speaker De Venecia, stating that "there is no legal obstacle to complying
with the duly promulgated – and now final and executory – COMELEC Decision of August 29,
2001 x x x."
These notwithstanding, and despite receipt by the House of Representatives of a copy of the
COMELEC en banc resolution on September 20, 2001,60 no action was taken by the House
on the letter-appeal of petitioner. Hence, petitioner sought the assistance of his party, LAKAS-
NUCD-UMDP, which sent a letter61 addressed to respondent Speaker De Venecia, dated
October 25, 2001, and signed by Party President Teofisto T. Guingona, Jr., Secretary-General
Heherson T. Alvarez, and Region VIII Party Chairman Sergio Antonio F. Apostol, requesting
the House of Representatives to act decisively on the matter in order that petitioner "can avail
of whatever remedy is available should their action remain unfavorable or otherwise
undecisive."
In response, Speaker De Venecia sent a letter62 dated October 30, 2001, stating that:
"We recognize the finality of the COMELEC decision and we are inclined to sustain it.
However, Rep. Locsin has officially notified the HOUSE in her privilege speech, inserted in the
HOUSE Journal dated September 4, 2001, that she shall 'openly defy and disobey' the
COMELEC ruling. This ultimately means that implementing the decision would result in the
spectacle of having two (2) legislators occupying the same congressional seat, a legal
situation, the only consideration, that effectively deters the HOUSE's liberty to take action.
In this light, the accepted wisdom is that the implementation of the COMELEC decision
is a matter that can be best, and with finality, adjudicated by the Supreme Court, which,
hopefully, shall act on it most expeditiously." (emphases supplied)
Hence, the present petition for mandamus and quo warranto.
Petitioner submits that by virtue of the resolution of the COMELEC en banc which has
become final and executory for failure of respondent Locsin to appeal therefrom, it has
become the ministerial duty: (1) of the Speaker of the House of Representatives, as its
Administrative Head and Presiding Officer, to implement the said resolution of the COMELEC
en banc by installing him as the duly-elected Representative of the 4th legislative district of
Leyte; and (2) of the Secretary-General, as official custodian of the records of the House, to
formally register his name in the Roll of Members of the House and delete the name of
respondent Locsin therefrom. Petitioner further contends that respondent Locsin has been
usurping and unlawfully holding the public office of Representative of the 4th legislative district
of Leyte considering that her premature proclamation has been declared null and void by the
COMELEC en banc. He alleges that the action or inaction of public respondents has deprived
him of his lawful right to assume the office of Representative of the 4th legislative district of
Leyte.
In his Comment,63 public respondent Speaker De Venecia alleged that mandamus will not lie
to compel the implementation of the COMELEC decision which is not merely a ministerial duty
but one which requires the exercise of discretion by the Speaker of the House considering
that: (1) it affects the membership of the House; and (2) there is nothing in the Rules of the
House of Representatives which imposes a duty on the House Speaker to implement a
COMELEC decision that unseats an incumbent House member.
In his Comment,64 public respondent Secretary-General Nazareno alleged that in reading the
name of respondent Locsin during the roll call, and in allowing her to take her oath before the
Speaker-elect and sit as Member of the House during the Joint Session of Congress, he was
merely performing official acts in compliance with the opinions65 rendered by House of
Representatives Chief Counsel and Executive Director Leonardo C. Palicte III stating that the
COMELEC has no jurisdiction to declare the proclamation of respondent Locsin as null and
void since it is the HRET which is the sole judge of all election, returns and qualifications of
Members of the House. He also contends that the determination of who will sit as Member of
the House of Representatives is not a ministerial function and cannot, thus, be compelled by
mandamus.
Respondent Locsin, in her Comment,66 alleged that the Supreme Court has no original
jurisdiction over an action for quo warranto involving a member of the House of
Representatives for under Section 17, Article VI of the Constitution it is the HRET which is the
sole judge of all contests relating to the election, returns and qualifications of Members of the
House of Representatives. She likewise asserts that this Court cannot issue the writ of
mandamus against a co-equal legislative department without grossly violating the principle of
separation of powers. She contends that the act of recognizing who should be seated as a
bona fide member of the House of Representatives is not a ministerial function but a
legislative prerogative, the performance of which cannot be compelled by mandamus.
Moreover, the prayer for a writ of mandamus cannot be directed against the Speaker and
Secretary-General because they do not have the authority to enforce and implement the
resolution of the COMELEC.
Additionally, respondent Locsin urges that the resolution of the COMELEC en banc is null and
void for lack of jurisdiction. First, it should have dismissed the case pending before it after her
proclamation and after she had taken her oath of office. Jurisdiction then was vested in the
HRET to unseat and remove a Member of the House of Representatives. Second, the petition
for declaration of nullity is clearly a pre-proclamation controversy and the COMELEC en banc
has no original jurisdiction to hear and decide a pre-proclamation controversy. It must first be
heard by a COMELEC Division. Third, the questioned decision is actually a "hodge-podge"
decision because of the peculiar manner in which the COMELEC disposed of the case.
Finally, respondent Locsin asserts that the matter of her qualification and eligibility has been
categorically affirmed by the HRET when it dismissed the quo warranto case filed against her,
docketed as HRET Case No. 01-043, entitled "Paciano Travero vs. Ma. Victoria Locsin," on
the ground that "the allegations stated therein are not proper grounds for a petition for quo
warranto against a Member of the House of Representatives under section 253 of the
Omnibus Election Code and Rule 17 of the HRET Rules, and that the petition was filed late."67
In his Reply,68 petitioner asserts that the remedy of respondent Locsin from the COMELEC
decision was to file a petition for certiorari with the Supreme Court, not to seek an opinion
from the Chief Legal Counsel of the House of Representatives; that the HRET has no
jurisdiction over a petition for declaration of nullity of proclamation which is based not on
ineligibility or disloyalty, but by reason that the candidate proclaimed as winner did not obtain
the highest number of votes; that the petition for annulment of proclamation is a pre-
proclamation controversy and, hence, falls within the exclusive jurisdiction of the COMELEC
pursuant to section 242 of B.P. Blg. 88169 and section 3, Article IX (C) of the Constitution; that
respondent Speaker De Venecia himself recognizes the finality of the COMELEC decision but
has decided to refer the matter to the Supreme Court for adjudication; that the enforcement
and implementation of a final decision of the COMELEC involves a ministerial act and does
not encroach on the legislative power of Congress; and that the power to determine who will
sit as Member of the House does not involve an exercise of legislative power but is vested in
the sovereign will of the electorate.
The core issues in this case are: (a) whether the proclamation of respondent Locsin by the
COMELEC Second Division is valid; (b) whether said proclamation divested the COMELEC
en banc of jurisdiction to review its validity; and (c) assuming the invalidity of said
proclamation, whether it is the ministerial duty of the public respondents to recognize
petitioner Codilla, Sr. as the legally elected Representative of the 4th legislative district of
Leyte vice respondent Locsin.
I
Whether the proclamation of respondent Locsin is valid.
After carefully reviewing the records of this case, we find that the proclamation of respondent
Locsin is null and void for the following reasons:
First. The petitioner was denied due process during the entire proceedings leading to
the proclamation of respondent Locsin.
COMELEC Resolution Nos. 340270sets the procedure for disqualification cases pursuant to
section 68 of the Omnibus Election Code, viz:
"C. PETITION TO DISQUALIFY A CANDIDATE PURSUANT TO SEC. 68 OF THE OMNIBUS
ELECTION CODE AND PETITION TO DISQUALIFY FOR LACK OF QUALIFICATIONS OR
POSSESSING SAME GROUNDS FOR DISQUALIFICATION
(1) The verified petition to disqualify a candidate pursuant to Sec. 68 of the Omnibus
Election Code and the verified petition to disqualify a candidate for lack of
qualifications or possessing same grounds for disqualification, may be filed any day
after the last day for filing of certificates of candidacy but not later than the date of
proclamation.
(2) The petition to disqualify a candidate pursuant to Sec. 68 of the Omnibus
Election Code shall be filed in ten (10) legible copies by any citizen of voting age, or
duly registered political party, organization or coalition of political parties against any
candidate who in an action or protest in which he is a party is declared by final
decision of a competent court guilty of, or found by the Commission of:
2.a having given money or other material consideration to influence,
induce or corrupt the voters or public officials performing electoral
functions;
2.b having committed acts of terrorism to enhance his candidacy;
2.c having spent in his election campaign an amount in excess of that
allowed by the Omnibus Election Code;
2.d having solicited, received or made any contribution prohibited under
Sections 89, 95, 96, 97 and 104 of the Omnibus Election Code;
2.e having violated any of Sections 80, 83, 85, 86 and 261, paragraphs d,
e, k, v, and cc, sub-paragraph 6 of the Omnibus Election Code, shall be
disqualified from continuing as a candidate, or if he has been elected,
from holding the office.
xxxxxxxxx
(4) Upon payment of the filing fee of P1,000.00 and legal research fee of P20.00,
the offices concerned shall docket the petition and assign to it a docket number
which must be consecutive, according to the order of receipt and must bear the year
and prefixed as SPA with the corresponding initial of the name of the office, i.e. SPA
(RED) No. C01-001; SPA (PES) No. C01-001;
(5) Within three (3) days from filing of the petitions, the offices concerned shall issue
summons to the respondent candidate together with a copy of the petition and its
enclosures, if any;
(6) The respondent shall be given three (3) days from receipt of summons within
which to file his verified answer (not a motion to dismiss) to the petition in ten (10)
legible copies, serving a copy thereof upon the petitioner. Grounds for Motion to
Dismiss may be raised as an affirmative defense;
(7) The proceeding shall be summary in nature. In lieu of the testimonies, the parties
shall submit their affidavits or counter-affidavits and other documentary evidences
including their position paper;
(8) The hearing must be completed within ten (10) days from the date of the filing of
the answer. The hearing officer concerned shall submit to the Clerk of the
Commission through the fastest means of communication, his findings, reports and
recommendations within five (5) days from the completion of the hearing and
reception of evidence together with the complete records of the case;
(9) Upon receipt of the records of the case of the findings, reports and
recommendation of the hearing officer concerned, the Clerk of the Commission shall
immediately docket the case consecutively and calendar the same for raffle to a
division;
(10) The division to whom the case is raffled, shall after consultation, assign the
same to a member who shall pen the decision, within five (5) days from the date of
consultation."
Resolution No. 3402 clearly requires the COMELEC, through the Regional Election Director,
to issue summons to the respondent candidate together with a copy of the petition and its
enclosures, if any, within three (3) days from the filing of the petition for disqualification.
Undoubtedly, this is to afford the respondent candidate the opportunity to answer the
allegations in the petition and hear his side. To ensure compliance with this requirement, the
COMELEC Rules of Procedure requires the return of the summons together with the proof of
service to the Clerk of Court of the COMELEC when service has been completed, viz:
"Rule 14. Summons
xxxxxxxxx
Section 5. Return.- When the service has been completed by personal service, the server
shall give notice thereof, by registered mail, to the protestant or his counsel and shall return
the summons to the Clerk of Court concerned who issued it, accompanied with the proof of
service.
Section 6. Proof of Service.- Proof of service of summons shall be made in the manner
provided for in the Rules of Court in the Philippines."
Thereafter, hearings, to be completed within ten (10) days from the filing of the Answer, must
be conducted. The hearing officer is required to submit to the Clerk of the Commission his
findings, reports and recommendations within five (5) days from the completion of the hearing
and reception of evidence together with the complete records of the case.
(a) Petitioner was not notified of the petition for his disqualification through the service
of summons nor of the Motions to suspend his proclamation.
The records of the case do not show that summons was served on the petitioner. They do not
contain a copy of the summons allegedly served on the petitioner and its corresponding proof
of service. Furthermore, private respondent never rebutted petitioner's repeated assertion that
he was not properly notified of the petition for his disqualification because he never received
summons.71 Petitioner claims that prior to receiving a telegraphed Order from the COMELEC
Second Division on May 22, 2001, directing the District Board of Canvassers to suspend his
proclamation, he was never summoned nor furnished a copy of the petition for his
disqualification. He was able to obtain a copy of the petition and the May 22 Order of the
COMELEC Second Division by personally going to the COMELEC Regional Office on May 23,
2001. Thus, he was able to file his Answer to the disqualification case only on May 24, 2001.
More, the proclamation of the petitioner was suspended in gross violation of section 72 of the
Omnibus Election Code which provides:
"Sec. 72. Effects of disqualification cases and priority.- The Commission and the courts shall
give priority to cases of disqualification by reason of violation of this Act to the end that a
final decision shall be rendered not later than seven days before the election in which
the disqualification is sought.
Any candidate who has been declared by final judgment to be disqualified shall not be voted
for, and the votes cast for him shall not be counted. Nevertheless, if for any reason, a
candidate is not declared by final judgment before an election to be disqualified and he
is voted for and receives the winning number of votes in such election, his violation of
the provisions of the preceding sections shall not prevent his proclamation and
assumption to office." (emphases supplied)
In the instant case, petitioner has not been disqualified by final judgment when the elections
were conducted on May 14, 2001. The Regional Election Director has yet to conduct hearing
on the petition for his disqualification. After the elections, petitioner was voted in office by a
wide margin of 17,903. On May 16, 2001, however, respondent Locsin filed a Most Urgent
Motion for the suspension of petitioner's proclamation. The Most Urgent Motion contained a
statement to the effect that a copy was served to the petitioner through registered mail. The
records reveal that no registry receipt was attached to prove such service.72 This violates
COMELEC Rules of Procedure requiring notice and service of the motion to all parties, viz:
"Section 4. Notice.- Notice of a motion shall be served by the movant to all parties concerned,
at least three (3) days before the hearing thereof, together with a copy of the motion. For good
cause shown, the motion may be heard on shorter notice, especially on matters which the
Commission or the Division may dispose of on its own motion.
The notice shall be directed to the parties concerned and shall state the time and place of the
hearing of the motion.
Section 5. Proof of Service.- No motion shall be acted upon by the Commission without proof
of service of notice thereof, except when the Commission or a Division is satisfied that the
rights of the adverse party or parties are not affected."
Respondent's Most Urgent Motion does not fall under the exceptions to notice and service of
motions. First, the suspension of proclamation of a winning candidate is not a matter which
the COMELEC Second Division can dispose of motu proprio. Section 6 of R.A. No.
664673 requires that the suspension must be "upon motion by the complainant or any
intervenor", viz:
"Section 6. Effect of Disqualification Case.- Any candidate who has been declared by final
judgment to be disqualified shall not be voted for, and the votes cast for him shall not be
counted. If for any reason, a candidate is not declared by final judgment before an election to
be disqualified and he is voted for and receives the winning number of votes in such
election, the Court or Commission (COMELEC) shall continue with the trial or hearing of
the action, inquiry, or protest and, upon motion of the complainant or any intervenor,
may during the pendency thereof order the suspension of the proclamation of such
candidate whenever the evidence of his guilt is strong." (emphases supplied)
Second, the right of an adverse party, in this case, the petitioner, is clearly affected. Given the
lack of service of the Most Urgent Motion to the petitioner, said Motion is a mere scrap of
paper.74 It cannot be acted upon by the COMELEC Second Division.
On May 18, 2001 at exactly 5:00 p.m.,75 respondent Locsin filed a Second Most Urgent Motion
for the suspension of petitioner's proclamation. Petitioner was served a copy of the Second
Motion again by registered mail. A registry receipt76 was attached evidencing service of the
Second Most Urgent Motion to the petitioner but it does not appear when the petitioner
received a copy thereof. That same day, the COMELEC Second Division issued an Order
suspending the proclamation of petitioner. Clearly, the petitioner was not given any
opportunity to contest the allegations contained in the petition for disqualification. The Order
was issued on the very same day the Second Most Urgent Motion was filed. The petitioner
could not have received the Second Most Urgent Motion, let alone answer the same on time
as he was served a copy thereof by registered mail.
Under section 6 of R.A. No. 6646, the COMELEC can suspend proclamation only when
evidence of the winning candidate's guilt is strong. In the case at bar, the COMELEC Second
Division did not make any specific finding that evidence of petitioner's guilt is strong.
Its only basis in suspending the proclamation of the petitioner is the "seriousness of the
allegations" in the petition for disqualification. Pertinent portion of the Order reads:
"Without giving due course to the petition xxx the Commission (2nd Division), pursuant to
Section 72 of the Omnibus Election Code in relation to Section 6, Republic Act No. 6646 xxx
and considering the serious allegations in the petition, hereby directs the Provincial
Board of Canvassers of Leyte to suspend the proclamation of respondent, if winning,
until further orders."77 (emphases supplied)
We hold that absent any finding that the evidence on the guilt of the petitioner is strong, the
COMELEC Second Division gravely abused its power when it suspended his proclamation.
(b) The COMELEC Second Division did not give ample opportunity to the petitioner to
adduce evidence in support of his defense in the petition for his disqualification.
All throughout the proceeding, no hearing was conducted on the petition for disqualification in
gross violation of section 6 of R.A. No. 6646 which specifically enjoins the COMELEC to
"continue with the trial or hearing of the action, inquiry, or protest." This is also in
violation of COMELEC Resolution No. 3402 requiring the Regional Election Director to
complete the hearing and reception of evidence within ten (10) days from the filing of the
Answer, and to submit his findings, reports, and recommendations within the five (5) days
from completion of the hearing and the reception of evidence.
Petitioner filed a Motion to Lift the Order of Suspension of his proclamation on May 25,
2001. Although an oral argument on this Motion was held, and the parties were allowed to file
their respective memoranda, the Motion was not acted upon. Instead, the COMELEC Second
Division issued a Resolution on the petition for disqualification against the petitioner. It was
based on the following evidence: (a) the affidavits attached to the Petition for Disqualification;
(b) the affidavits attached to the Answer; and (c) the respective memoranda of the parties.
On this score, it bears emphasis that the hearing for Motion to Lift the Order of Suspension
cannot be substituted for the hearing in the disqualification case. Although intrinsically linked,
it is not to be supposed that the evidence of the parties in the main disqualification case are
the same as those in the Motion to Lift the Order of Suspension. The parties may have other
evidence which they may deem proper to present only on the hearing for the disqualification
case. Also, there may be evidence which are unavailable during the hearing for the Motion to
Lift the Order of Suspension but which may be available during the hearing for the
disqualification case.
In the case at bar, petitioner asserts that he submitted his Memorandum merely to support his
Motion to Lift the Order of Suspension. It was not intended to answer and refute the
disqualification case against him. This submission was sustained by the COMELEC en banc.
Hence, the members of the COMELEC en banc concluded, upon consideration of the
additional affidavits attached in his Urgent Manifestation, that the evidence to disqualify the
petitioner was insufficient. More specifically, the ponente of the challenged Resolution of the
COMELEC Second Division held:
"Indeed, I find from the records that the May 30, 2001 hearing of the COMELEC (Second
Division) concerns only the incident relating to the Motion to Lift Order of Suspension of
Proclamation. It also appears that the order for the submission of the parties' respective
memoranda was in lieu of the parties' oral argument on the motion. This would explain the fact
that Codilla's Memorandum refers mainly to the validity of the issuance of the order of
suspension of proclamation. There is, however, no record of any hearing on the urgent motion
for the suspension of proclamation. Indeed, it was only upon the filing of the Urgent
Manifestation by Codilla that the Members of the Commission (Second Division) and
other Members of the Commission en banc had the opportunity to consider Codilla's
affidavits. This time, Codilla was able to present his side, thus, completing the
presentation of evidentiary documents from both sides."78 (emphases supplied)
Indeed, careful reading of the petitioner's Memorandum shows that he confined his arguments
in support of his Motion to Lift the Order of Suspension. In said Memorandum, petitioner
raised the following issues: (a) he was utterly deprived of procedural due process, and
consequently, the order suspending his proclamation is null and void; (b) the said order of
suspension of proclamation has no legal and factual basis; and (c) evidence of guilt on his
part is patently inexistent for the purpose of directing the suspension of his proclamation.79 He
urged the COMELEC Second Division to conduct a full dress hearing on the main
disqualification case should the suspension be lifted.80
(c) the Resolution of the COMELEC Second Division disqualifying the petitioner is not
based on substantial evidence.
The Resolution of the COMELEC Second Division cannot be considered to be based on
substantial evidence. It relied merely on affidavits of witnesses attached to the petition for
disqualification. As stressed, the COMELEC Second Division gave credence to the affidavits
without hearing the affiants. In reversing said Resolution, the COMELEC en banc correctly
observed:
"Lacking evidence of Codilla, the Commission (Second Division) made its decisions based
mainly on the allegation of the petitioner and the supporting affidavits. With this lopsided
evidence at hand, the result was predictable. The Commission (Second Division) had no
choice. Codilla was disqualified."81
Worse, the Resolution of the COMELEC Second Division, even without the evidence coming
from the petitioner, failed to prove the gravamen of the offense for which he was charged. 82
Petitioner allegedly violated section 68 (a) of the Omnibus Election Code which reads:
"Section 68. Disqualifications.- Any candidate who, in action or protest in which he is a party is
declared by final decision of a competent court guilty of, or found by the Commission of having
(a) given money or other material consideration to influence, induce or corrupt the voters or
public officials performing official functions, xxx shall be disqualified from continuing as
candidate, or if he has been elected, from holding office"
To be disqualified under the above-quoted provision, the following elements must be proved:
(a) the candidate, personally or through his instructions, must have given money or other
material consideration; and (b) the act of giving money or other material consideration must be
for the purpose of influencing, inducing, or corrupting the voters or public officials performing
electoral functions.
In the case at bar, the petition for disqualification alleged that (a) petitioner ordered the
extraction, hauling and distribution of gravel and sand, and (b) his purpose was to induce and
influence the voters of Kananga and Matag-ob, Leyte to vote for him. Pertinent portion of the
petition reads:
"[T]he respondent [herein petitioner], within the election period, took advantage of his current
elective position as City Mayor of Ormoc City by illegally and unlawfully using during the
prohibited period, public equipments and vehicles belonging to and owned by the City
Government of Ormoc City in extracting, hauling and distributing gravel and sand to the
residents and voters of the Municipalities of Kananga and Matag-ob Leyte, well within the
territorial limits of the 4th Congressional District of Leyte, which acts were executed without
period, and clearly for the illicit purpose of unduly inducing or directly corrupting various voters
of Kananga and Matag-ob, within the 4th legislative district of Leyte, for the precise purpose of
inducing and influencing the voters/beneficiaries of Kananga and Matag-ob, Leyte to cast their
votes for said respondent."83
The affidavits relied upon by the COMELEC Second Division failed to prove these allegations.
For instance, Cesar A. Laurente merely stated that he saw three (3) ten-wheeler dump trucks
and a Hyundai Payloader with the markings "Ormoc City Government" extracting and hauling
sand and gravel from the riverbed adjacent to the property owned by the Codilla family.84
Agripino C. Alferez and Rogelio T. Sulvera in their Joint Affidavit merely stated that they saw
white trucks owned by the City Government of Ormoc dumping gravel and sand on the road of
Purok 6, San Vicente, Matag-ob, Leyte. A payloader then scattered the sand and gravel
unloaded by the white trucks.85
On the other hand, Danilo D. Maglasang, a temporary employee of the City Government of
Ormoc assigned to check and record the delivery of sand and gravel for the different
barangays in Ormoc, stated as follows:
"3. That on April 20, 2001, I was ordered by Engr. Arnel Padayo, an employee of the City
Engineering Office, Ormoc City to go to Tagaytay, Kangga (sic), Leyte as that will be the
source of the sand and gravel. I inquired why we had to go to Kananga but Engr. Padayao
said that it's not a problem as it was Mayor Eufrocino M. Codilla, Sr. who ordered this and the
property is owned by the family of Mayor Codilla. We were to deliver sand and gravel to
whoever requests from Mayor Codilla."86
Similarly, the Affidavit of Basilio Bates cannot prove the offense charged against the
petitioner. He alleged that on April 18, 2001, a white truck with the marking "City Government
of Ormoc" came to his lot at Montebello, Kananga, Leyte and unloaded mixed sand and that
the driver of the truck told him to "vote for Codilla as a (sic) congressman during
election."87 His statement is hearsay. He has no personal knowledge of the supposed order of
the petitioner to distribute gravel and sand for the purpose of inducing the voters to vote for
him. The same could be said about the affidavits of Randy T. Merin,88 Alfredo C. De la
Peña,89 Miguel P. Pandac,90 Paquito Bregeldo, Cristeta Alferez , Glicerio Rios,91 Romulo
Alkuino, Sr.,92 Abner Casas,93 Rita Trangia,94 and Judith Erispe95 attached to respondent
Locsin's Memorandum on the Motion to Lift the Suspension of Proclamation.
Also valueless are the affidavits of other witnesses96 of respondent Locsin, all similarly
worded, which alleged that the petitioner ordered the repair of the road in Purok 6, Barangay
San Vicente, Matag-ob, Leyte and the flattening of the area where the cockfights were to be
held. These allegations are extraneous to the charge in the petition for disqualification. More
importantly, these allegations do not constitute a ground to disqualify the petitioner based on
section 68 of the Omnibus Election Code.
To be sure, the petition for disqualification also ascribed other election offenses against the
petitioner, particularly section 261 of the Omnibus Election Code, viz:
"Section 261. Prohibited Acts.- The following shall be guilty of an election offense:
 (a) Vote-buying and vote-selling.- (1) Any person who gives, offers or promises
money or anything of value, gives or promises any office or employment, franchise
or grant, public or private, or make or offers to make an expenditure, directly or
indirectly, or cause an expenditure to be made to any person, association,
corporation, entity or community in order to induce anyone or the public in general,
to vote for or against any candidate or withhold his vote in the election, or to vote for
or against any aspirant for the nomination or choice of a candidate in a convention
or similar selection process of a political party.
xxxxxxxxx
(o) Use of public funds, money deposited in trust, equipment, facilities owned or
controlled by the government for an election campaign.- Any person who uses
under any guise whatsoever directly or indirectly, xxx (3) any equipment, vehicle,
facility, apparatus, or paraphernalia owned by the government or by its political
subdivisions, agencies including government-owned or controlled corporations, or
by the Armed Forces of the Philippines for any election campaign or for any partisan
political activity x x x."
However, the jurisdiction of the COMELEC to disqualify candidates is limited to
those enumerated in section 68 of the Omnibus Election Code. All other election
offenses are beyond the ambit of COMELEC jurisdiction.97 They are criminal and
not administrative in nature. Pursuant to sections 265 and 268 of the Omnibus
Election Code, the power of the COMELEC is confined to the conduct of preliminary
investigation on the alleged election offenses for the purpose of prosecuting the
alleged offenders before the regular courts of justice, viz:
"Section 265. Prosecution.- The Commission shall, through its duly authorized
legal officers, have the exclusive power to conduct preliminary investigation of all
election offenses punishable under this Code, and to prosecute the same. The
Commission may avail of the assistance of other prosecuting arms of the
government: Provided, however, That in the event that the Commission fails to act
on any complaint within four months from his filing, the complainant may file the
complaint with the office of the fiscal or with the Ministry of Justice for proper
investigation and prosecution, if warranted.
xxxxxxxxx
Section 268. Jurisdiction.- The regional trial court shall have the exclusive original jurisdiction
to try and decide any criminal action or proceeding for violation of this Code, except those
relating to the offense of failure to register or failure to vote which shall be under the
jurisdictions of metropolitan or municipal trial courts. From the decision of the courts, appeal
will lie as in other criminal cases."
The COMELEC Second Division grievously erred when it decided the disqualification case
based on section 261 (a) and (o), and not on section 68 of the Omnibus Election Code.
(d) Exclusion of the votes in favor of the petitioner and the proclamation of respondent
Locsin was done with undue haste.
The COMELEC Second Division ordered the exclusion of the votes cast in favor of the
petitioner, and the proclamation of the respondent Locsin, without affording the petitioner the
opportunity to challenge the same. In the morning of June 15, 2001, the Provincial Board of
Canvassers convened, and on the strength of the said Resolution excluding the votes
received by the petitioner, certified that respondent Locsin received the highest number of
votes. On this basis, respondent Locsin was proclaimed.
Records reveal that the petitioner received notice of the Resolution of the COMELEC Second
Division only through his counsel via a facsimile message in the afternoon of June 15,
200198 when everything was already fait accompli. Undoubtedly, he was not able to contest
the issuance of the Certificate of Canvass and the proclamation of respondent Locsin. This is
plain and simple denial of due process.
The essence of due process is the opportunity to be heard. When a party is deprived of that
basic fairness, any decision by any tribunal in prejudice of his rights is void.
Second. The votes cast in favor of the petitioner cannot be considered "stray" and
respondent cannot be validly proclaimed on that basis.
The Resolution of the COMELEC Second Division in SPA No. 01-208 contains two
dispositions: (1) it ruled that the petitioner was disqualified as a candidate for the position of
Congressman of the Fourth District of Leyte; and (2) it ordered the immediate proclamation of
the candidate who garnered the highest number of votes, to the exclusion of the respondent
[herein petitioner].
As previously stated, the disqualification of the petitioner is null and void for being violative of
due process and for want of substantial factual basis. Even assuming, however, that the
petitioner was validly disqualified, it is still improper for the COMELEC Second Division to
order the immediate exclusion of votes cast for the petitioner as stray, and on this basis,
proclaim the respondent as having garnered the next highest number of votes.
(a) The order of disqualification is not yet final, hence, the votes cast in favor of the
petitioner cannot be considered "stray."
Section 6 of R.A. No. 6646 and section 72 of the Omnibus Election Code require a final
judgment before the election for the votes of a disqualified candidate to be considered
"stray." Hence, when a candidate has not yet been disqualified by final judgment during the
election day and was voted for, the votes cast in his favor cannot be declared stray. To do so
would amount to disenfranchising the electorate in whom sovereignty resides.99 For in voting
for a candidate who has not been disqualified by final judgment during the election day, the
people voted for him bona fide, without any intention to misapply their franchise, and in the
honest belief that the candidate was then qualified to be the person to whom they would
entrust the exercise of the powers of government.100
This principle applies with greater force in the case at bar considering that the petitioner has
not been declared by final judgment to be disqualified not only before but even after
the elections. The Resolution of the COMELEC Second Division disqualifying the petitioner
did not attain finality, and hence, could not be executed, because of the timely filing of a
Motion for Reconsideration. Section 13, Rule 18 of the COMELEC Rules of Procedure on
Finality of Decisions and Resolutions reads:
"Sec. 13. Finality of Decisions or Resolutions.- (a) In ordinary actions, special proceedings,
provisional remedies and special reliefs, a decision or resolution of the Commission en banc
shall become final and executory after thirty (30) days from its promulgation.
(b) In Special Actions and Special Cases a decision or resolution of the Commission en banc
shall become final and executory after five (5) days in Special Actions and Special Cases and
after fifteen (15) days in all other proceedings, following their promulgation.
(c) Unless a motion for reconsideration is seasonably filed, a decision or resolution of a
Division shall become final and executory after the lapse of five (5) days in Special
Actions and Special Cases and after fifteen (15) days in all other actions or
proceedings, following its promulgation." (emphasis supplied)
In this wise, COMELEC Resolution No. 4116,101 issued in relation to the finality of resolutions
or decisions in disqualification cases, provides:
"This pertains to the finality of decisions or resolutions of the Commission en banc or division,
particularly on Special Actions (Disqualification Cases).
Special Action cases refer to the following:
(a) Petition to deny due course to a certificate of candidacy;
(b) Petition to declare a candidate as a nuisance candidate;
(c) Petition to disqualify a candidate; and
(d) Petition to postpone or suspend an election.
Considering the foregoing and in order to guide field officials on the finality of decisions or
resolutions on special action cases (disqualification cases) the Commission, RESOLVES, as it
is hereby RESOLVED, as follows:
(1) the decision or resolution of the En Banc of the Commission on disqualification
cases shall become final and executory after five (5) days from its promulgation
unless restrained by the Supreme Court;
(2) the decision or resolution of a Division on disqualification cases shall become
final and executory after the lapse of five (5) days unless a motion for
reconsideration is seasonably filed;
(3) where the ground for disqualification case is by reason of non-residence,
citizenship, violation of election laws and other analogous cases and on the day of
the election the resolution has not become final and executory the BEI shall tally
and count the votes for such disqualified candidate;
(4) the decision or resolution of the En Banc on nuisance candidates, particularly
whether the nuisance candidate has the same name as the bona fide candidate
shall be immediately executory;
(5) the decision or resolution of a DIVISION on nuisance candidate, particularly
where the nuisance candidate has the same name as the bona fide candidate shall
be immediately executory after the lapse of five (5) days unless a motion for
reconsideration is seasonably filed. In which case, the votes cast shall not be
considered stray but shall be counted and tallied for the bona fide candidate.
All resolutions, orders and rules inconsistent herewith are hereby modified or repealed."
Considering the timely filing of a Motion for Reconsideration, the COMELEC Second Division
gravely abused its discretion in ordering the immediate disqualification of the petitioner and
ordering the exclusion of the votes cast in his favor. Section 2, Rule 19 of the COMELEC
Rules of Procedure is very clear that a timely Motion for Reconsideration shall suspend the
execution or implementation of the resolution, viz:
Section 2. Period for filing Motion for Reconsideration.- A motion to reconsider a decision,
resolution, order, or ruling of a Division shall be filed within five (5) days from the promulgation
thereof. Such motion, if not pro forma, suspends the execution or implementation of the
decision, resolution, order or ruling." (emphases supplied)
(b) Respondent Locsin, as a mere second placer, cannot be proclaimed.
More brazen is the proclamation of respondent Locsin which violates the settled doctrine that
the candidate who obtains the second highest number of votes may not be proclaimed winner
in case the winning candidate is disqualified.102 In every election, the people's choice is the
paramount consideration and their expressed will must at all times be given effect. When the
majority speaks and elects into office a candidate by giving him the highest number of votes
cast in the election for the office, no one can be declared elected in his place.103 In Domino v.
COMELEC,104 this Court ruled, viz:
"It would be extremely repugnant to the basic concept of the constitutionally guaranteed right
to suffrage if a candidate who has not acquired the majority or plurality of votes is proclaimed
winner and imposed as representative of a constituency, the majority of which have positively
declared through their ballots that they do not choose him. To simplistically assume that the
second placer would have received that (sic) other votes would be to substitute our judgment
for the mind of the voters. He could not be considered the first among the qualified candidates
because in a field which excludes the qualified candidate, the conditions would have
substantially changed.
xxxxxxxxx
The effect of a decision declaring a person ineligible to hold an office is only that the election
fails entirely, that the wreath of victory cannot be transferred from the disqualified winner to
the repudiated loser because the law then as now only authorizes a declaration in favor of the
person who has obtained a plurality of votes, and does not entitle the candidate receiving the
next highest number of votes to be declared elected. In such case, the electors have failed to
make a choice and the election is a nullity. To allow the defeated and repudiated candidate to
take over the elective position despite his rejection by the electorate is to disenfranchise the
electorate without any fault on their part and to undermine the importance and meaning of
democracy and the people's right to elect officials of their choice."105
Respondent Locsin proffers a distinction between a disqualification based on personal
circumstances such as age, residence or citizenship and disqualification based on election
offenses. She contends that the election of candidates later disqualified based on election
offenses like those enumerated in section 68 of the Omnibus Election Code should be
invalidated because they violate the very essence of suffrage and as such, the votes cast in
his favor should not be considered.106
This contention is without merit. In the recent case of Trinidad v. COMELEC,107 this Court
ruled that the effect of a judgment disqualifying a candidate, after winning the election, based
on personal circumstances or section 68 of the Omnibus Election Code is the same: the
second placer could not take the place of the disqualified winner.
II
Whether the proclamation of respondent Locsin divested the COMELEC en banc of
jurisdiction to review its validity.
Respondent Locsin submits that the COMELEC en banc has no jurisdiction to annul her
proclamation. She maintains that the COMELEC en banc was been divested of jurisdiction to
review the validity of her proclamation because she has become a member of the House of
Representatives. Thus, she contends that the proper forum to question her membership to the
House of Representatives is the House of Representative Electoral Tribunal (HRET).
We find no merit in these contentions.
First. The validity of the respondent's proclamation was a core issue in the Motion for
Reconsideration seasonably filed by the petitioner.
In his timely Motion for Reconsideration with the COMELEC en banc, petitioner argued that
the COMELEC Second Division erred thus:
"(1) in disqualifying petitioner on the basis solely of the dubious declaration of the
witnesses for respondent Locsin;
(2) in adopting in toto the allegations of the witnesses for respondent Locsin; and
(3) in promulgating the resolution in violation of its own rules of procedure
and in directing therein the immediate proclamation of the second highest
'vote getter.'" (emphases supplied)
In support of his third assignment of error, petitioner argued that "the Second Division's
directive for the immediate proclamation of the second highest vote-getter is premature
considering that the Resolution has yet to become final and executory."108 Clearly, the validity
of respondent Locsin's proclamation was made a central issue in the Motion for
Reconsideration seasonably filed by the petitioner. Without doubt, the COMELEC en banc has
the jurisdiction to rule on the issue.
The fact that the Petition for Nullity of Proclamation was filed directly with the COMELEC en
banc is of no moment. Even without said Petition, the COMELEC en banc could still rule on
the nullity of respondent's proclamation because it was properly raised in the Motion for
Reconsideration.
Section 3, Article IX-C of the 1987 Constitution empowers the COMELEC en banc to review,
on motion for reconsideration, decisions or resolutions decided by a division, viz:
"Sec. 3. The Commission on Elections may sit en banc or in two divisions, and shall
promulgate its rules of procedure in order to expedite disposition of election cases, including
pre-proclamation controversies. All such election cases shall be heard and decided in division,
provided that motions for reconsideration of decision shall be decided by the Commission en
banc."
Pursuant to this Constitutional mandate, the COMELEC Rules of Procedure provides:
"Rule 19. Motions for Reconsideration.-
Section 1. Grounds for Motion for Reconsideration.- A motion for reconsideration
may be filed on the grounds that the evidence is insufficient to justify the decision,
order or ruling, or that the said decision, order or ruling is contrary to law.
 Section 2. Period for filing Motion for Reconsideration.- A motion to reconsider a
decision, resolution, order, or ruling of a Division shall be filed within five (5) days
from the promulgation thereof. Such motion, if not pro forma, suspends the
execution or implementation of the decision, resolution, order or ruling."
Section 3. Form and Contents of Motion for Reconsideration.- The motion shall be
verified and shall point out specifically the findings or conclusions of the decision,
resolution, order or ruling which are not supported by the evidence or which are
contrary to law, making express reference to the testimonial or documentary
evidence or to the provisions of law alleged to be contrary to such findings or
resolutions.
Section 4. Effect of Motion for Reconsideration on Period to Appeal.- A motion to
reconsider a decision, resolution, order or ruling when not pro forma, suspends the
running of the period to elevate the matter to the Supreme Court.
Section 5. How Motion for Reconsideration Disposed Of.- Upon the filing of a motion
to reconsider a decision, resolution, order or ruling of a Division, the Clerk of Court
concerned shall, within twenty-four (24) hours from the filing thereof, notify the
Presiding Commissioner. The latter shall within two (2) days thereafter certify the
case to the Commission en banc.
Section 6. Duty of the Clerk of Court of the Commission to set Motion for Hearing.-
The Clerk of Court concerned shall calendar the motion for reconsideration for the
resolution of the Commission en banc within ten (10) days from the certification
thereof." (emphases supplied)
Since the petitioner seasonably filed a Motion for Reconsideration of the Order of the Second
Division suspending his proclamation and disqualifying him, the COMELEC en banc was not
divested of its jurisdiction to review the validity of the said Order of the Second Division. The
said Order of the Second Division was yet unenforceable as it has not attained finality; the
timely filing of the motion for reconsideration suspends its execution. It cannot, thus, be used
as the basis for the assumption in office of the respondent as the duly elected Representative
of the 4th legislative district of Leyte.
Second. It is the House of Representatives Electoral Tribunal (HRET) which has no
jurisdiction in the instant case.
Respondent contends that having been proclaimed and having taken oath as representative
of the 4th legislative district of Leyte, any question relative to her election and eligibility should
be brought before the HRET pursuant to section 17 of Article VI of the 1987 Constitution.109
We reject respondent's contention.
(a) The issue on the validity of the Resolution of the COMELEC Second Division has
not yet been resolved by the COMELEC en banc.
To stress again, at the time of the proclamation of respondent Locsin, the validity of the
Resolution of the COMELEC Second Division was seasonably challenged by the petitioner in
his Motion for Reconsideration. The issue was still within the exclusive jurisdiction of the
COMELEC en banc to resolve. Hence, the HRET cannot assume jurisdiction over the matter.
In Puzon vs. Cua,110 even the HRET ruled that the "doctrinal ruling that once a proclamation
has been made and a candidate-elect has assumed office, it is this Tribunal that has
jurisdiction over an election contest involving members of the House of
Representatives, could not have been immediately applicable due to the issue regarding
the validity of the very COMELEC pronouncements themselves." This is because the
HRET has no jurisdiction to review resolutions or decisions of the COMELEC, whether issued
by a division or en banc.
(b) The instant case does not involve the election and qualification of respondent
Locsin.
Respondent Locsin maintains that the proper recourse of the petitioner is to file a petition
for quo warranto with the HRET.
A petition for quo warranto may be filed only on the grounds of ineligibility and disloyalty to the
Republic of the Philippines.111 In the case at bar, neither the eligibility of the respondent
Locsin nor her loyalty to the Republic of the Philippines is in question. There is no issue that
she was qualified to run, and if she won, to assume office.
A petition for quo warranto in the HRET is directed against one who has been duly elected
and proclaimed for having obtained the highest number of votes but whose eligibility is in
question at the time of such proclamation. It is evident that respondent Locsin cannot be the
subject of quo warranto proceeding in the HRET. She lost the elections to the petitioner by a
wide margin. Her proclamation was a patent nullity. Her premature assumption to office as
Representative of the 4th legislative district of Leyte was void from the beginning. It is the
height of absurdity for the respondent, as a loser, to tell petitioner Codilla, Sr., the winner, to
unseat her via a quo warranto proceeding.
III
Whether it is the ministerial duty of the public respondents to
recognize petitioner Codilla, Sr. as the legally elected Representative
of the 4th legislative district of Leyte vice respondent Locsin.
Under Rule 65, section 3 of the 1997 Rules of Civil Procedure, any person may file a verified concur.
petition for mandamus "when any tribunal, corporation, board, officer or person unlawfully Carpio, J., no part.
neglects the performance of an act which the law specifically enjoins as a duty resulting from
an office, trust, or station, or unlawfully excludes another from the use and enjoyment of a
right or office to which such other is entitled, and there is no other plain, speedy and adequate
remedy in the ordinary course of law."112 For a petition for mandamus to prosper, it must be
shown that the subject of the petition for mandamus is a ministerial act or duty, and not
purely discretionary on the part of the board, officer or person, and that the petitioner has a
well-defined, clear and certain right to warrant the grant thereof.

The distinction between a ministerial and discretionary act is well delineated. A purely
ministerial act or duty is one which an officer or tribunal performs in a given state of facts, in a
prescribed manner, in obedience to the mandate of a legal authority, without regard to or the
exercise of his own judgment upon the propriety or impropriety of the act done. If the law
imposes a duty upon a public officer and gives him the right to decide how or when the duty
shall be performed, such duty is discretionary and not ministerial. The duty is ministerial only
when the discharge of the same requires neither the exercise of official discretion or
judgment.113

In the case at bar, the administration of oath and the registration of the petitioner in the Roll of
Members of the House of Representatives representing the 4th legislative district of Leyte is
no longer a matter of discretion on the part of the public respondents. The facts are settled
and beyond dispute: petitioner garnered 71,350 votes as against respondent Locsin who only
got 53, 447 votes in the May 14, 2001 elections. The COMELEC Second Division initially
ordered the proclamation of respondent Locsin; on Motion for Reconsideration the COMELEC
en banc set aside the order of its Second Division and ordered the proclamation of the
petitioner. The Decision of the COMELEC en banc has not been challenged before this Court
by respondent Locsin and said Decision has become final and executory.

In sum, the issue of who is the rightful Representative of the 4th legislative district of Leyte
has been finally settled by the COMELEC en banc, the constitutional body with jurisdiction on
the matter. The rule of law demands that its Decision be obeyed by all officials of the
land. There is no alternative to the rule of law except the reign of chaos and confusion.

IN VIEW WHEREOF, the Petition for Mandamus is granted. Public Speaker of the House of
Representatives shall administer the oath of petitioner EUFROCINO M. CODILLA, SR., as the
duly-elected Representative of the 4th legislative district of Leyte. Public respondent
Secretary-General shall likewise register the name of the petitioner in the Roll of Members of
the House of Representatives after he has taken his oath of office. This decision shall be
immediately executory.

SO ORDERED.

Davide, Jr., C.J., Bellosillo, Vitug, Mendoza, Panganiban, Quisumbing, Ynares-Santiago,

Sandoval-Gutierrez, Austria-Martinez, Corona, Carpio-Morales, Callejo, Sr., and Azcuna, JJ.,
 Republic of the Philippines 4. Ordering respondent Barbara Ruby Talaga to cease and desist from discharging
SUPREME COURT the functions of the Office of the Mayor;
Manila
5. In view of the permanent vacancy in the Office of the Mayor of Lucena City, the
EN BANC proclaimed Vice-Mayor is ORDERED to succeed as Mayor as provided under
Section 44 of the Local Government Code;
G.R. No. 196804 October 9, 2012
6. DIRECTING the Clerk of Court of the Commission to furnish copies of this
MAYOR BARBARA RUBY C. TALAGA, Petitioner, Resolution to the Office of the President of the Philippines, the Department of
vs. Interior and Local Government, the Department of Finance and the Secretary of the
COMMISSION ON ELECTIONS and RODERICK A. ALCALA, Respondents. Sangguniang Panglunsod of Lucena City.

x-----------------------x Let the Department of Interior and Local Government and the Regional Election Director of
Region IV of COMELEC implement this resolution.
G.R. No. 197015
SO ORDERED.1
PHILIP M. CASTILLO, Petitioner,
vs. Antecedents
COMMISSION ON ELECTIONS, BARBARA RUBY TALAGA and RODERICK A.
ALCALA, Respondents. On November 26, 2009 and December 1, 2009, Ramon Talaga (Ramon) and Philip M.
Castillo (Castillo) respectively filed their certificates of candidacy (CoCs) for the position of
DECISION Mayor of Lucena City to be contested in the scheduled May 10, 2010 national and local
elections.2
BERSAMIN, J.:
Ramon, the official candidate of the Lakas-Kampi-CMD,3 declared in his CoC that he was
eligible for the office he was seeking to be elected to.
In focus in these consolidated special civil actions are the disqualification of a substitute who
was proclaimed the winner of a mayoralty election; and the ascertainment of who should
assume the office following the substitute’s disqualification. Four days later, or on December 5, 2009, Castillo filed with the COMELEC a petition
denominated as In the Matter of the Petition to Deny Due Course to or Cancel Certificate of
Candidacy of Ramon Y. Talaga, Jr. as Mayor for Having Already Served Three (3)
The consolidated petitions for certiorari seek to annul and set aside the En Banc Resolution
Consecutive Terms as a City Mayor of Lucena, which was docketed as SPA 09-029 (DC).4 He
issued on May 20, 2011 in SPC No. 10-024 by the Commission on Elections (COMELEC), the
alleged
dispositive portion of which states:

therein that Ramon, despite knowing that he had been elected and had served three
WHEREFORE, judgment is hereby rendered:
consecutive terms as Mayor of Lucena City, still filed his CoC for Mayor of Lucena City in the
May 10, 2010 national and local elections.
1. REVERSING and SETTING ASIDE the January 11, 2011 Resolution of the
Second Division;
The pertinent portions of Castillo’s petition follow:
2. GRANTING the petition in intervention of Roderick A. Alcala;
1. Petitioner is of legal age, Filipino, married, and a resident of Barangay Mayao
Crossing, Lucena City but may be served with summons and other processes of this
3. ANNULLING the election and proclamation of respondent Barbara C. Talaga as Commission at the address of his counsel at 624 Aurora Blvd., Lucena City 4301;
mayor of Lucena City and CANCELLING the Certificate of Canvass and
Proclamation issued therefor;
 2. Respondent Ramon Y. Talaga, Jr. is likewise of legal age, married, and a resident
of Barangay Ibabang Iyam, Lucena City and with postal address at the Office of the
City Mayor, City Hall, Lucena City, where he may be served with summons and
other processes of this Commission;
3. Petitioner, the incumbent city vice-mayor of Lucena having been elected during
the 2007 local elections, is running for city mayor of Lucena under the Liberal party
this coming 10 May 2010 local elections and has filed his certificate of candidacy for
city mayor of Lucena;
4. Respondent was successively elected mayor of Lucena City in 2001, 2004, and
2007 local elections based on the records of the Commission on Elections of
Lucena City and had fully served the aforesaid three (3) terms without any voluntary
and involuntary interruption;
5. Except the preventive suspension imposed upon him from 13 October 2005 to 14
November 2005 and from 4 September 2009 to 30 October 2009 pursuant to
Sandiganbayan 4th Division Resolution in Criminal Case No. 27738 dated 3
October 2005, the public service as city mayor of the respondent is continuous and
uninterrupted under the existing laws and jurisprudence;
6. There is no law nor jurisprudence to justify the filing of the certificate of candidacy
of the respondent, hence, such act is outrightly unconstitutional, illegal, and highly
immoral;
7. Respondent, knowing well that he was elected for and had fully served three (3)
consecutive terms as a city mayor of Lucena, he still filed his Certificate of
Candidacy for City Mayor of Lucena for this coming 10 May 2010 national and local
elections;
8. Under the Constitution and existing Election Laws, New Local Government Code
of the Philippines, and jurisprudence the respondent is no longer entitled and is
already disqualified to be a city mayor for the fourth consecutive term;
9. The filing of the respondent for the position of city mayor is highly improper,
unlawful and is potentially injurious and prejudicial to taxpayers of the City of
Lucena; and
10. It is most respectfully prayed by the petitioner that the respondent be declared
disqualified and no longer entitled to run in public office as city mayor of Lucena City
based on the existing law and jurisprudence.5
The petition prayed for the following reliefs, to wit:
WHEREFORE, premises considered, it is respectfully prayed that the Certificate of Candidacy
filed by the respondent be denied due course to or cancel the same and that he be declared
as a disqualified candidate under the existing Election Laws and by the provisions of the New
Local Government Code.6 (Emphasis supplied.)
Ramon countered that that the Sandiganbayan had preventively suspended him from office
during his second and third terms; and that the three-term limit rule did not then apply to him
pursuant to the prevailing jurisprudence7 to the effect that an involuntary separation from office
amounted to an interruption of continuity of service for purposes of the application of the
three-term limit rule.
In the meantime, on December 23, 2009, the Court promulgated the ruling in Aldovino, Jr. v.
Commission on Elections,8 holding that preventive suspension, being a mere temporary
incapacity, was not a valid ground for avoiding the effect of the three-term limit rule. Thus, on
December 30, 2009, Ramon filed in the COMELEC a Manifestation with Motion to Resolve,
taking into account the intervening ruling in Aldovino. Relevant portions of his Manifestation
with Motion to Resolve are quoted herein, viz:
4. When respondent filed his certificate of candidacy for the position of Mayor of Lucena City,
the rule that ‘where the separation from office is caused by reasons beyond the control of the
officer – i.e. involuntary – the service of term is deemed interrupted’ has not yet been
overturned by the new ruling of the Supreme Court. As a matter of fact, the prevailing rule
then of the Honorable Commission in [sic] respect of the three (3)-term limitation was its
decision in the case of Aldovino, et al. vs. Asilo where it stated:
"Thus, even if respondent was elected during the 2004 elections, which was supposedly his
third and final term as city councilor, the same cannot be treated as a complete service or full
term in office since the same was interrupted when he was suspended by the Sandiganbayan
Fourth Division. And the respondent actually heeded the suspension order since he did not
receive his salary during the period October 16-31 and November 1-15 by reason of his actual
suspension from office. And this was further bolstered by the fact that the DILG issued a
Memorandum directing him, among others, to reassume his position." (Emphasis supplied.)
5. Clearly, there was no misrepresentation on the part of respondent as would constitute a
ground for the denial of due course to and/or the cancellation of respondent’s certificate of
candidacy at the time he filed the same. Petitioner’s ground for the denial of due course to
and/or the cancellation of respondent’s certificate of candidacy thus has no basis, in fact and
in law, as there is no ground to warrant such relief under the Omnibus Election Code and/or
its implementing laws.
6. Pursuant, however, to the new ruling of the Supreme Court in respect of the issue on the
three (3)-term limitation, respondent acknowledges that he is now DISQUALIFIED to run for
the position of Mayor of Lucena City having served three (3) (albeit interrupted) terms as
Mayor of Lucena City prior to the filing of his certificate of candidacy for the 2010 elections.
7. In view of the foregoing premises and new jurisprudence on the matter, respondent
respectfully submits the present case for decision declaring him as DISQUALIFIED to run for
the position of Mayor of Lucena City.9
Notwithstanding his express recognition of his disqualification to run as Mayor of Lucena City
in the May 10, 2010 national and local elections, Ramon did not withdraw his CoC.
Acting on Ramon’s Manifestation with Motion to Resolve, the COMELEC First Division issued
a Resolution on April 19, 2010,10 disposing as follows:
WHEREFORE, premises considered, the instant Petition is hereby GRANTED. Accordingly,
Ramon Y. Talaga, Jr. is hereby declared DISQUALIFIED to run for Mayor of Lucena City for
the 10 May 2010 National and Local Elections.
SO ORDERED.
Initially, Ramon filed his Verified Motion for Reconsideration against the April 19, 2010
Resolution of the COMELEC First Division.11 Later on, however, he filed at 9:00 a.m. of May 4,
2010 an Ex-parte Manifestation of Withdrawal of the Pending Motion for Reconsideration.12 At
4:30 p.m. on the same date, Barbara Ruby filed her own CoC for Mayor of Lucena City in
substitution of Ramon, attaching thereto the Certificate of Nomination and Acceptance
(CONA) issued by Lakas-Kampi-CMD, the party that had nominated Ramon.13
On May 5, 2010, the COMELEC En Banc, acting on Ramon’s Ex parte Manifestation of
Withdrawal, declared the COMELEC First Division’s Resolution dated April 19, 2010 final and
executory.14
On election day on May 10, 2010, the name of Ramon remained printed on the ballots but the
votes cast in his favor were counted in favor of Barbara Ruby as his substitute candidate,
resulting in Barbara Ruby being ultimately credited with 44,099 votes as against Castillo’s
39,615 votes.15
Castillo promptly filed a petition in the City Board of Canvassers (CBOC) seeking the
suspension of Barbara Ruby’s proclamation.16
It was only on May 13, 2010 when the COMELEC En Banc, upon the recommendation of its
Law Department,17gave due course to Barbara Ruby’s CoC and CONA through Resolution
No. 8917, thereby including her in the certified list of candidates.18 Consequently, the CBOC
proclaimed Barbara Ruby as the newly-elected Mayor of Lucena City.19
On May 20, 2010, Castillo filed a Petition for Annulment of Proclamation with the
COMELEC,20 docketed as SPC 10-024. He alleged that Barbara Ruby could not substitute
Ramon because his CoC had been cancelled and denied due course; and Barbara Ruby
could not be considered a candidate because the COMELEC En Banc had approved her
substitution three days after the elections; hence, the votes cast for Ramon should be
considered stray.
In her Comment on the Petition for Annulment of Proclamation,21 Barbara Ruby maintained
the validity of her substitution. She countered that the COMELEC En Banc did not deny due
course to or cancel Ramon’s COC, despite a declaration of his disqualification, because there
was no finding that he had committed misrepresentation, the ground for the denial of due
course to or cancellation of his COC. She prayed that with her valid substitution, Section 12 of
Republic Act No. 900622 applied, based on which the votes cast for Ramon were properly
counted in her favor.
On July 26, 2010, Roderick Alcala (Alcala), the duly-elected Vice Mayor of Lucena City,
sought to intervene,23positing that he should assume the post of Mayor because Barbara
Ruby’s substitution had been invalid and Castillo had clearly lost the elections.
On January 11, 2011, the COMELEC Second Division dismissed Castillo’s petition and
Alcala’s petition-in-intervention,24 holding:
In the present case, Castillo was notified of Resolution 8917 on May 13, 2010 as it was the
basis for the proclamation of Ruby on that date. He, however, failed to file any action within
the prescribed period either in the Commission or the Supreme Court assailing the said
resolution. Thus, the said resolution has become final and executory. It cannot anymore be
altered or reversed.
xxxx
x x x. A close perusal of the petition filed by Castillo in SPA 10-029 (Dc) shows that it was
actually for the disqualification of Ramon for having served three consecutive terms, which is
a ground for his disqualification under the Constitution in relation to Section 4(b)3 of
Resolution 8696. There was no mention therein that Ramon has committed material
representation that would be a ground for the cancellation or denial of due course to the CoC
of Ramon under Section 78 of the Omnibus Election Code. The First Division, in fact, treated
the petition as one for disqualification as gleaned from the body of the resolution and its
dispositive portion quoted above. This treatment of the First Division of the petition as one for
disqualification only is affirmed by the fact that its members signed Resolution No. 8917 where
it was clearly stated that the First Division only disqualified Ramon.
Having been disqualified only, the doctrine laid down in Miranda v. Abaya is not applicable.
Ramon was rightly substituted by Ruby. As such, the votes for Ramon cannot be considered
as stray votes but should be counted in favor of Ruby since the substituted and the substitute
carry the same surname – Talaga, as provided in Section 12 of Republic Act No. 9006.
xxxx
Moreover, there is no provision in the Omnibus Election Code or any election laws for that
matter which requires that the substitution and the Certificate of Candidacy of the substitute
should be approved and given due course first by the Commission or the Law Department
before it can be considered as effective. All that Section 77 of the Omnibus Election Code as
implemented by Section 13 of Resolution No. 8678 requires is that it should be filed with the
proper office. The respondent is correct when she argued that in fact even the BEI can receive
a CoC of a substitute candidate in case the cause for the substitution happened between the
day before the election and mid-day of election day. Thus, even if the approval of the
substitution was made after the election, the substitution became effective on the date of the
filing of the CoC with the Certificate of Nomination and Acceptance.
There being no irregularity in the substitution by Ruby of Ramon as candidate for mayor of
Lucena City, the counting of the votes of Ramon in favor of Ruby is proper. The proclamation,
thus, of Ruby as mayor elect of Lucena City is in order. Hence, we find no cogent reason to
annul the proclamation of respondent Barbara Ruby C. Talaga as the duly elected Mayor of
the City of Lucena after the elections conducted on May 10, 2010.25
Acting on Castillo and Alcala’s respective motions for reconsideration, the COMELEC En
Banc issued the assailed Resolution dated May 20, 2011 reversing the COMELEC Second
Division’s ruling.26
Pointing out that: (a) Resolution No. 8917 did not attain finality for being issued without a
hearing as a mere incident of the COMELEC’s ministerial duty to receive the COCs of
substitute candidates; (b) Resolution No. 8917 was based on the wrong facts; and (c)
Ramon’s disqualification was resolved with finality only on May 5, 2010, the COMELEC En
Banc concluded that Barbara Ruby could not have properly substituted Ramon but had simply
become an additional candidate who had filed her COC out of time; and held that Vice Mayor
Alcala should succeed to the position pursuant to Section 44 of the Local Government Code
(LGC).27
Issues
The core issue involves the validity of the substitution by Barbara Ruby as candidate for the
position of Mayor of Lucena City in lieu of Ramon, her husband.
Ancillary to the core issue is the determination of who among the contending parties should
assume the contested elective position.
Ruling
The petitions lack merit.
1.
Existence of a valid CoC is a condition
sine qua non for a valid substitution
The filing of a CoC within the period provided by law is a mandatory requirement for any
person to be considered a candidate in a national or local election. This is clear from Section
73 of the Omnibus Election Code, to wit:
Section 73. Certificate of candidacy — No person shall be eligible for any elective public office
unless he files a sworn certificate of candidacy within the period fixed herein.
Section 74 of the Omnibus Election Code specifies the contents of a COC, viz:
Section 74. Contents of certificate of candidacy.—The certificate of candidacy shall state that
the person filing it is announcing his candidacy for the office stated therein and that he is
eligible for said office; if for Member of the Batasang Pambansa, the province, including its
component cities, highly urbanized city or district or sector which he seeks to represent; the
political party to which he belongs; civil status; his date of birth; residence; his post office
address for all election purposes; his profession or occupation; that he will support and defend
the Constitution of the Philippines and will maintain true faith and allegiance thereto; that he
will obey the laws, legal orders, and decrees promulgated by the duly constituted authorities;
that he is not a permanent resident or immigrant to a foreign country; that the obligation
imposed by his oath is assumed voluntarily, without mental reservation or purpose of evasion;
and that the facts stated in the certificate of candidacy are true to the best of his knowledge. x
xx
The evident purposes of the requirement for the filing of CoCs and in fixing the time limit for
filing them are, namely: (a) to enable the voters to know, at least 60 days prior to the regular
election, the candidates from among whom they are to make the choice; and (b) to avoid
confusion and inconvenience in the tabulation of the votes cast. If the law does not confine to
the duly-registered candidates the choice by the voters, there may be as many persons voted
for as there are voters, and votes may be cast even for unknown or fictitious persons as a
mark to identify the votes in favor of a candidate for another office in the same
election.28 Moreover, according to Sinaca v. Mula,29 the CoC is:
x x x in the nature of a formal manifestation to the whole world of the candidate’s political
creed or lack of political creed. It is a statement of a person seeking to run for a public office
certifying that he announces his candidacy for the office mentioned and that he is eligible for
the office, the name of the political party to which he belongs, if he belongs to any, and his
post-office address for all election purposes being as well stated.
Accordingly, a person’s declaration of his intention to run for public office and his affirmation
that he possesses the eligibility for the position he seeks to assume, followed by the timely
filing of such declaration, constitute a valid CoC that render the person making the declaration
a valid or official candidate.
There are two remedies available to prevent a candidate from running in an electoral race.
One is through a petition for disqualification and the other through a petition to deny due
course to or cancel a certificate of candidacy. The Court differentiated the two remedies in
Fermin v. Commission on Elections,30 thuswise:
x x x A petition for disqualification, on the one hand, can be premised on Section 12 or 68 of
the Omnibus Election Code, or Section 40 of the Local Government Code. On the other hand,
a petition to deny due course to or cancel a CoC can only be grounded on a statement of a
material representation in the said certificate that is false. The petitions also have different
effects. While a person who is disqualified under Section 68 is merely prohibited to continue
as a candidate, the person whose certificate is cancelled or denied due course under Section
78 is not treated as a candidate at all, as if he/she never filed a CoC.31
Inasmuch as the grounds for disqualification under Section 68 of the Omnibus Election Code
(i.e., prohibited acts of candidates, and the fact of a candidate’s permanent residency in
another country when that fact affects the residency requirement of a candidate) are separate
and distinct from the grounds for the cancellation of or denying due course to a COC (i.e.,
nuisance candidates under Section 69 of the Omnibus Election Code; and material
misrepresentation under Section 78 of the Omnibus Election Code), the Court has recognized
in Miranda v. Abaya32that the following circumstances may result from the granting of the
petitions, to wit:
(1) A candidate may not be qualified to run for election but may have filed a valid
CoC;
(2) A candidate may not be qualified and at the same time may not have filed a valid
CoC; and
(3) A candidate may be qualified but his CoC may be denied due course or
cancelled.
In the event that a candidate is disqualified to run for a public office, or dies, or withdraws his
CoC before the elections, Section 77 of the Omnibus Election Code provides the option of
substitution, to wit:
Section 77. Candidates in case of death, disqualification or withdrawal. — If after the last day
for the filing of certificates of candidacy, an official candidate of a registered or accredited
political party dies, withdraws or is disqualified for any cause, only a person belonging to, and
certified by, the same political party may file a certificate of candidacy to replace the candidate
who died, withdrew or was disqualified. The substitute candidate nominated by the political
party concerned may file his certificate of candidacy for the office affected in accordance with
the preceding sections not later than mid-day of the day of the election. If the death,
withdrawal or disqualification should occur between the day before the election and mid-day of
election day, said certificate may be filed with any board of election inspectors in the political
subdivision where he is a candidate, or, in the case of candidates to be voted for by the entire
electorate of the country, with the Commission.
Nonetheless, whether the ground for substitution is death, withdrawal or disqualification of a
candidate, Section 77 of the Omnibus Election Code unequivocally states that only an official
candidate of a registered or accredited party may be substituted.
Considering that a cancelled CoC does not give rise to a valid candidacy,33 there can be no
valid substitution of the candidate under Section 77 of the Omnibus Election Code. It should
be clear, too, that a candidate who does not file a valid CoC may not be validly substituted,
because a person without a valid CoC is not considered a candidate in much the same way as
any person who has not filed a CoC is not at all a candidate.34
Likewise, a candidate who has not withdrawn his CoC in accordance with Section 73 of the
Omnibus Election Code may not be substituted. A withdrawal of candidacy can only give
effect to a substitution if the substitute candidate submits prior to the election a sworn CoC as
required by Section 73 of the Omnibus Election Code.35
2.
Declaration of Ramon’s disqualification
rendered his CoC invalid; hence, he was not
a valid candidate to be properly substituted
In the light of the foregoing rules on the CoC, the Court concurs with the conclusion of the
COMELEC En Banc that the Castillo petition in SPA 09-029 (DC) was in the nature of a
petition to deny due course to or cancel a CoC under Section 78 of the Omnibus Election
Code.
In describing the nature of a Section 78 petition, the Court said in Fermin v. Commission on
Elections:36
Lest it be misunderstood, the denial of due course to or the cancellation of the CoC is not
based on the lack of qualifications but on a finding that the candidate made a material
representation that is false, which may relate to the qualifications required of the public office
he/she is running for. It is noted that the candidate states in his/her CoC that he/she is eligible
for the office he/she seeks. Section 78 of the OEC, therefore, is to be read in relation to the
constitutional and statutory provisions on qualifications or eligibility for public office. If the
candidate subsequently states a material representation in the CoC that is false, the
COMELEC, following the law, is empowered to deny due course to or cancel such certificate.
Indeed, the Court has already likened a proceeding under Section 78 to a quo warranto
proceeding under Section 253 of the OEC since they both deal with the eligibility or
qualification of a candidate, with the distinction mainly in the fact that a "Section 78" petition is
filed before proclamation, while a petition for quo warranto is filed after proclamation of the
winning candidate.
Castillo’s petition contained essential allegations pertaining to a Section 78 petition, namely:
(a) Ramon made a false representation in his CoC; (b) the false representation referred to a
material matter that would affect the substantive right of Ramon as candidate (that is, the right
to run for the election for which he filed his certificate); and (c) Ramon made the false
representation with the intention to deceive the electorate as to his qualification for public
office or deliberately attempted to mislead, misinform, or hide a fact that would otherwise
render him ineligible.37 The petition expressly challenged Ramon’s eligibility for public office
based on the prohibition stated in the Constitution and the Local Government Code against
any person serving three consecutive terms, and specifically prayed that "the Certificate of
Candidacy filed by the respondent Ramon be denied due course to or cancel the same and
that he be declared as a disqualified candidate."38
The denial of due course to or the cancellation of the CoC under Section 78 involves a finding
not only that a person lacks a qualification but also that he made a material representation
that is false.39 A petition for the denial of due course to or cancellation of CoC that is short of
the requirements will not be granted. In Mitra v. Commission on Elections,40 the Court stressed
that there must also be a deliberate attempt to mislead, thus:
The false representation under Section 78 must likewise be a "deliberate attempt to mislead,
misinform, or hide a fact that would otherwise render a candidate ineligible." Given the
purpose of the requirement, it must be made with the intention to deceive the electorate as to
the would-be candidate’s qualifications for public office. Thus, the misrepresentation that
Section 78 addresses cannot be the result of a mere innocuous mistake, and cannot exist in a
situation where the intent to deceive is patently absent, or where no deception on the
electorate results. The deliberate character of the misrepresentation necessarily follows from
a consideration of the consequences of any material falsity: a candidate who falsifies a
material fact cannot run; if he runs and is elected, he cannot serve; in both cases, he can be
prosecuted for violation of the election laws.
It is underscored, however, that a Section 78 petition should not be interchanged or confused
with a Section 68 petition. The remedies under the two sections are different, for they are
based on different grounds, and can result in different eventualities.41 A person who is
disqualified under Section 68 is prohibited to continue as a candidate, but a person whose
CoC is cancelled or denied due course under Section 78 is not considered as a candidate at
all because his status is that of a person who has not filed a CoC.42 Miranda v. Abaya43 has
clarified that a candidate who is disqualified under Section 68 can be validly substituted
pursuant to Section 77 because he remains a candidate until disqualified; but a person whose
CoC has been denied due course or cancelled under Section 78 cannot be substituted
because he is not considered a candidate.1âwphi1
To be sure, the cause of Ramon’s ineligibility (i.e., the three-term limit) is enforced both by the
Constitution and statutory law. Article X, Section 8 of the 1987 Constitution provides:
Section 8. The term of office of elective local officials, except barangay officials, which shall be
determined by law, shall be three years and no such official shall serve for more than three
consecutive terms. Voluntary renunciation of the office for any length of time shall not be
considered as an interruption in the continuity of his service for the full term for which he was
elected.
Section 43 of the Local Government Code reiterates the constitutional three-term limit for all
elective local officials, to wit:
Section 43. Term of Office. – (a) x x x
(b) No local elective official shall serve for more than three (3) consecutive terms in the same
position. Voluntary renunciation of the office for any length of time shall not be considered as
an interruption in the continuity of service for the full term for which the elective official
concerned was elected. (Emphasis supplied.)
The objective of imposing the three-term limit rule was "to avoid the evil of a single person
accumulating excessive power over a particular territorial jurisdiction as a result of a
prolonged stay in the same office." The Court underscored this objective in Aldovino, Jr. v.
Commission on Elections,44 stating:
x x x The framers of the Constitution specifically included an exception to the people’s
freedom to choose those who will govern them in order to avoid the evil of a single person
accumulating excessive power over a particular territorial jurisdiction as a result of a
prolonged stay in the same office. To allow petitioner Latasa to vie for the position of city
mayor after having served for three consecutive terms as a municipal mayor would obviously
defeat the very intent of the framers when they wrote this exception. Should he be allowed
another three consecutive terms as mayor of the City of Digos, petitioner would then be
possibly holding office as chief executive over the same territorial jurisdiction and inhabitants
for a total of eighteen consecutive years. This is the very scenario sought to be avoided by the
Constitution, if not abhorred by it.
To accord with the constitutional and statutory proscriptions, Ramon was absolutely precluded
from asserting an eligibility to run as Mayor of Lucena City for the fourth consecutive term.
Resultantly, his CoC was invalid and ineffectual ab initio for containing the incurable defect
consisting in his false declaration of his eligibility to run. The invalidity and inefficacy of his
CoC made his situation even worse than that of a nuisance candidate because the nuisance
candidate may remain eligible despite cancellation of his CoC or despite the denial of due
course to the CoC pursuant to Section 69 of the Omnibus Election Code.45
Ramon himself specifically admitted his ineligibility when he filed his Manifestation with Motion
to Resolve on December 30, 2009 in the COMELEC.46 That sufficed to render his CoC invalid,
considering that for all intents and purposes the COMELEC’s declaration of his disqualification
had the effect of announcing that he was no candidate at all.
We stress that a non-candidate like Ramon had no right to pass on to his substitute. As
Miranda v. Abaya aptly put it:
Even on the most basic and fundamental principles, it is readily understood that the concept of
a substitute presupposes the existence of the person to be substituted, for how can a person
take the place of somebody who does not exist or who never was. The Court has no other
choice but to rule that in all the instances enumerated in Section 77 of the Omnibus Election
Code, the existence of a valid certificate of candidacy seasonably filed is a requisite sine qua
non.
All told, a disqualified candidate may only be substituted if he had a valid certificate of
candidacy in the first place because, if the disqualified candidate did not have a valid and
seasonably filed certificate of candidacy, he is and was not a candidate at all. If a person was
not a candidate, he cannot be substituted under Section 77 of the Code. Besides, if we were
to allow the so-called "substitute" to file a "new" and "original" certificate of candidacy beyond
the period for the filing thereof, it would be a crystalline case of unequal protection of the law,
an act abhorred by our Constitution.47 (Emphasis supplied)
3.
Granting without any qualification of petition in
SPA No. 09-029(DC) manifested COMELEC’s intention to
declare Ramon disqualified and to cancel his CoC
That the COMELEC made no express finding that Ramon committed any deliberate
misrepresentation in his CoC was of little consequence in the determination of whether his
CoC should be deemed cancelled or not.
In Miranda v. Abaya,48 the specific relief that the petition prayed for was that the CoC "be not
given due course and/or cancelled." The COMELEC categorically granted "the petition" and
then pronounced — in apparent contradiction — that Joel Pempe Miranda was "disqualified."
The
Court held that the COMELEC, by granting the petition without any qualification, disqualified
Joel Pempe Miranda and at the same time cancelled Jose Pempe Miranda’s CoC. The Court
explained:
The question to settle next is whether or not aside from Joel "Pempe" Miranda being
disqualified by the Comelec in its May 5, 1998 resolution, his certificate of candidacy had
likewise been denied due course and cancelled.
The Court rules that it was.
Private respondent’s petition in SPA No. 98-019 specifically prayed for the following:
WHEREFORE, it is respectfully prayed that the Certificate of Candidacy filed by respondent
for the position of Mayor for the City of Santiago be not given due course and/or cancelled.
Other reliefs just and equitable in the premises are likewise prayed for.
(Rollo, p. 31; Emphasis ours.)
In resolving the petition filed by private respondent specifying a very particular relief, the
Comelec ruled favorably in the following manner:
WHEREFORE, in view of the foregoing, the Commission (FIRST DIVISION) GRANTS the
Petition. Respondent JOSE "Pempe" MIRANDA is hereby DISQUALIFIED from running for
the position of mayor of Santiago City, Isabela, in the May 11, 1998 national and local
elections.
SO ORDERED.
(p.43, Rollo; Emphasis ours.)
From a plain reading of the dispositive portion of the Comelec resolution of May 5, 1998 in
SPA No. 98-019, it is sufficiently clear that the prayer specifically and particularly sought in the
petition was GRANTED, there being no qualification on the matter whatsoever. The
disqualification was simply ruled over and above the granting of the specific prayer for denial
of due course and cancellation of the certificate of candidacy. x x x.49
xxxx
x x x. There is no dispute that the complaint or petition filed by private respondent in SPA No.
98-019 is one to deny due course and to cancel the certificate of candidacy of Jose "Pempe"
Miranda (Rollo, pp. 26-31). There is likewise no question that the said petition was GRANTED
without any qualification whatsoever. It is rather clear, therefore, that whether or not the
Comelec granted any further relief in SPA No. 98-019 by disqualifying the candidate, the fact
remains that the said petition was granted and that the certificate of candidacy of Jose
"Pempe" Miranda was denied due course and cancelled. x x x.50
The crucial point of Miranda v. Abaya was that the COMELEC actually granted the particular
relief of cancelling or denying due course to the CoC prayed for in the petition by not
subjecting that relief to any qualification.
Miranda v. Abaya applies herein. Although Castillo’s petition in SPA No. 09-029 (DC)
specifically sought both the disqualification of Ramon and the denial of due course to or
cancellation of his CoC, the COMELEC categorically stated in the Resolution dated April 19,
2010 that it was granting the petition. Despite the COMELEC making no finding of material
misrepresentation on the part of Ramon, its granting of Castillo’s petition without express
qualifications manifested that the COMELEC had cancelled Ramon’s CoC based on his
apparent ineligibility. The Resolution dated April 19, 2010 became final and executory
because Castillo did not move for its reconsideration, and because Ramon later withdrew his
motion for reconsideration filed in relation to it.
4.
Elected Vice Mayor must succeed
and assume the position of Mayor
due to a permanent vacancy in the office
On the issue of who should assume the office of Mayor of Lucena City, Castillo submits that
the doctrine on the rejection of the second-placer espoused in Labo, Jr. v. Commission on
Elections51 should not apply to him because Ramon’s disqualification became final prior to the
elections.52 Instead, he cites Cayat v. Commission on Elections,53where the Court said:
x x x In Labo there was no final judgment of disqualification before the elections. The doctrine
on the rejection of the second placer was applied in Labo and a host of other cases because
the judgment declaring the candidate’s disqualification in Labo and the other cases had not
become final before the elections. To repeat, Labo and the other cases applying the doctrine
on the rejection of the second placer have one common essential condition — the
disqualification of the candidate had not become final before the elections. This essential
condition does not exist in the present case.
Thus, in Labo, Labo’s disqualification became final only on 14 May 1992, three days after the
11 May 1992 elections. On election day itself, Labo was still legally a candidate. In the present
case, Cayat was disqualified by final judgment 23 days before the 10 May 2004 elections. On
election day, Cayat was no longer legally a candidate for mayor. In short, Cayat’s candidacy
for Mayor of Buguias, Benguet was legally non-existent in the 10 May 2004 elections.
The law expressly declares that a candidate disqualified by final judgment before an election
cannot be voted for, and votes cast for him shall not be counted. This is a mandatory provision
of law. Section 6 of Republic Act No. 6646, The Electoral Reforms Law of 1987, states:
Sec. 6. Effect of Disqualification Case.— Any candidate who has been declared by final
judgment to be disqualified shall not be voted for, and the votes cast for him shall not be
counted. If for any reason a candidate is not declared by final judgment before an election to
be disqualified and he is voted for and receives the winning number of votes in such election,
the Court or Commission shall continue with the trial and hearing of the action, inquiry, or
protest and, upon motion of the complainant or any intervenor, may during the pendency
thereof order the suspension of the proclamation of such candidate whenever the evidence of
his guilt is strong. (Emphasis added)
Section 6 of the Electoral Reforms Law of 1987 covers two situations. The first is when the
disqualification becomes final before the elections, which is the situation covered in the first
sentence of Section 6. The second is when the disqualification becomes final after the
elections, which is the situation covered in the second sentence of Section 6.
The present case falls under the first situation. Section 6 of the Electoral Reforms Law
governing the first situation is categorical: a candidate disqualified by final judgment before an
election cannot be voted for, and votes cast for him shall not be counted. The Resolution
disqualifying Cayat became final on 17 April 2004, way before the 10 May 2004 elections.
Therefore, all the 8,164 votes cast in Cayat’s favor are stray. Cayat was never a candidate in
the 10 May 2004 elections. Palileng’s proclamation is proper because he was the sole and
only candidate, second to none.54
Relying on the pronouncement in Cayat, Castillo asserts that he was entitled to assume the
position of Mayor of Lucena City for having obtained the highest number of votes among the
remaining qualified candidates.
It would seem, then, that the date of the finality of the COMELEC resolution declaring Ramon
disqualified is decisive. According to Section 10, Rule 19 of the COMELEC’s Resolution No.
8804,55 a decision or resolution of a Division becomes final and executory after the lapse of
five days following its promulgation unless a motion for reconsideration is seasonably filed.
Under Section 8, Rule 20 of Resolution No. 8804, the decision of the COMELEC En Banc
becomes final and executory five days after its promulgation and receipt of notice by the
parties.
The COMELEC First Division declared Ramon disqualified through its Resolution dated April
19, 2010, the copy of which Ramon received on the same date.56 Ramon filed a motion for
reconsideration on April 21, 201057 in accordance with Section 7 of COMELEC Resolution No.
8696,58 but withdrew the motion on May 4, 2010,59ostensibly to allow his substitution by
Barbara Ruby. On his part, Castillo did not file any motion for reconsideration. Such
circumstances indicated that there was no more pending matter that could have effectively
suspended the finality of the ruling in due course. Hence, the Resolution dated April 19, 2010
could be said to have attained finality upon the lapse of five days from its promulgation and
receipt of it by the parties. This happened probably on April 24, 2010. Despite such finality, the
COMELEC En Banc continued to act on the withdrawal by Ramon of his motion for
reconsideration through the May 5, 2010 Resolution declaring the April 19, 2010 Resolution of
the COMELEC First Division final and executory.
Yet, we cannot agree with Castillo’s assertion that with Ramon’s disqualification becoming
final prior to the May 10, 2010 elections, the ruling in Cayat was applicable in his favor.
Barbara Ruby’s filing of her CoC in substitution of Ramon significantly differentiated this case
from the factual circumstances obtaining in Cayat. Rev. Fr. Nardo B. Cayat, the petitioner in
Cayat, was disqualified on April 17, 2004, and his disqualification became final before the May
10, 2004 elections. Considering that no substitution of Cayat was made, Thomas R. Palileng,
Sr., his rival, remained the only candidate for the mayoralty post in Buguias, Benguet. In
contrast, after Barbara Ruby substituted Ramon, the May 10, 2010 elections proceeded with
her being regarded by the electorate of Lucena City as a bona fide candidate. To the
electorate, she became a contender for the same position vied for by Castillo, such that she WHEREFORE, the Court DISMISSES the petitions in these consolidated cases; AFFIRMS
stood on the same footing as Castillo. Such standing as a candidate negated Castillo’s claim the Resolution issued on May 20, 2011 by the COMELEC En Banc; and ORDERS the
of being the candidate who obtained the highest number of votes, and of being consequently petitioners to pay the costs of suit.
entitled to assume the office of Mayor.
SO ORDERED.
Indeed, Castillo could not assume the office for he was only a second placer.1âwphi1 Labo,
Jr. should be applied. There, the Court emphasized that the candidate obtaining the second LUCAS P. BERSAMIN
highest number of votes for the contested office could not assume the office despite the Associate Justice
disqualification of the first placer because the second placer was "not the choice of the
sovereign will."60 Surely, the Court explained, a minority or defeated candidate could not be
deemed elected to the office.61 There was to be no question that the second placer lost in the
election, was repudiated by the electorate, and could not assume the vacated position.62 No
law imposed upon and compelled the people of Lucena City to accept a loser to be their
political leader or their representative.63

The only time that a second placer is allowed to take the place of a disqualified winning
candidate is when two requisites concur, namely: (a) the candidate who obtained the highest
number of votes is disqualified; and (b) the electorate was fully aware in fact and in law of that
candidate’s disqualification as to bring such awareness within the realm of notoriety but the
electorate still cast the plurality of the votes in favor of the ineligible candidate.64 Under this
sole exception, the electorate may be said to have waived the validity and efficacy of their
votes by notoriously misapplying their franchise or throwing away their votes, in which case
the eligible candidate with the second highest number of votes may be deemed elected.65 But
the exception did not apply in favor of Castillo simply because the second element was
absent. The electorate of Lucena City were not the least aware of the fact of Barbara Ruby’s
ineligibility as the substitute. In fact, the COMELEC En Banc issued the Resolution finding her
substitution invalid only on May 20, 2011, or a full year after the decisions.

On the other hand, the COMELEC En Banc properly disqualified Barbara Ruby from
assuming the position of Mayor of Lucena City. To begin with, there was no valid candidate for
her to substitute due to Ramon’s ineligibility. Also, Ramon did not voluntarily withdraw his CoC
before the elections in accordance with Section 73 of the Omnibus Election Code. Lastly, she
was not an additional candidate for the position of Mayor of Lucena City because her filing of
her CoC on May 4, 2010 was beyond the period fixed by law. Indeed, she was not, in law and
in fact, a candidate.66

A permanent vacancy in the office of Mayor of Lucena City thus resulted, and such vacancy
should be filled pursuant to the law on succession defined in Section 44 of the LGC, to wit:67

Section 44. Permanent Vacancies in the Offices of the Governor, Vice-Governor, Mayor, and
Vice-Mayor. – If a permanent vacancy occurs in the office of the governor or mayor, the vice-
governor or vice-mayor concerned shall become the governor or mayor. x x x